2.Seated Juror’s Prior Trial Involving Detective Remiker

MR. STRANG: Thank you, your Honor. I would like to start with the easiest points first. First, the juror did the right thing in bringing this to the Court's attention with a note to the bailiff.

Second, I have no information that the juror's mistake about knowing Detective Remiker was anything other than an innocent mistake, that she didn't recognize the name at the time, recognize the face when she saw him here. Again, I have no reason to question the good faith of the juror through the voir dire process or filling out the jury questionnaire.

Those two easier points made, I think that the right thing for the Court to do is to excuse Ms Temme, and I say that for several reasons. One, again, the easiest point first, we're almost two solid weeks of testimony into the trial, probably somewhere near a halfway point, certainly of the State's case, I would think. And we have four alternate jurors, four extra jurors.

So the cost to the parties or the Court of discharging any one juror seems not very high, at least if we play the probabilities on how many alternates we really would need. We have got four spare jurors at the moment.

Second, the problem this presents is a first for me. And although we have not had a chance to do any serious research on it, I would be surprised if we found much in the reported case law in Wisconsin, or in any other jurisdiction, that gave a whole lot of guidance here.

But the way I see it, is this. We have a juror here who doesn't just know a witness in the case from outside of the courtroom, we have a juror who knows a witness in this case from filling a very special role in an earlier case, in which that witness also filled a special role.

And by that I mean, the juror here is, in fact, and will be told, that she is a judge in this case, a judge of the facts; as important a judicial role as your Honor's, although in a separate realm. She also filled that role in an earlier case as a juror.

This is a role that many citizens go their entire life and never get to fill. And others, once, twice, maybe three times, in a lifetime, serve as a juror in our system. So it's an atypical role, and a serious one, and one that involves some artificiality in weighing evidence, in weighing the credibility of human beings who testify in a courtroom.

One has to set aside what one knows, or thinks she knows, about facts from outside the courtroom. One has to follow specific instructions in how to weigh credibility. And one has to weigh credibility collaboratively with 11 other judges of the facts.

So it's a very specialized, as I say, role that she's filled, as to Detective Remiker, in the past. He too had a special role. He was not just a witness, or a visitor to the courtroom whom she may have met during the trial, he was both witness and a party, as I understand, in the earlier lawsuit. He probably testified.

In ordinary life, at the diner, or at a dinner party, or at school, wherever we may meet people, we don't put one another under oath to engage in conversation and to decide what we believe and what we don't, of what someone else tells us.

And, of course, if you are a witness in a trial, you are under oath. If you are a party, as well, almost unavoidably your credibility is at stake and you have an interest, certainly, in the outcome of the litigation. That's why I say, almost unavoidably, your credibility is at stake.

So both have had special roles. And while in day-to-day discourse we might have a positive initial impression of a casual acquaintance and come to change our mind about that when we get an incite or glimpse into character that causes us to question the initial good impression we had, or vice versa, this happens in everyday life.

As a juror, or a judge of the facts, this juror has committed her judgment to the credibility, to assessing the credibility of a witness here, based on his role as a sworn witness and a party on an earlier proceeding. It is human nature for any judge, including one, a judge of the law who wears a black robe, to be reluctant to reconsider or set aside judgments one's made. Wisconsin law recognizes this in a very, I concede, a loosely analogous way when, for example, if a case is reversed and remanded by an appellate court, sent back to a trial court, my recollection of Wisconsin law is that the parties have a renewed or revivified right to substitute on the judge of the law who first heard that case and now has had his or her judgment vacated or reversed and remanded.

That has to be a tacit recognition that, in the special role of judging, it is harder to set aside a considered judgment drawn from sworn testimony and under the well-crafted and instructed rules by which judges of the facts decide credibility of witnesses, and ultimately decide facts in a case.

So I think that this is such an unlikely task for a juror to be able to undertake; that is, to set aside, not just what do I know casually about this witness in this trial, but to set aside my experience with that witness as a sworn witness in an earlier lawsuit of which I was a judge of the facts.

I think it's so unlikely that a juror will do that successfully, excuse me, that this presents a question of objective bias. The closest case we have in Wisconsin clearly is State v. Kiernan, K-i-e-r-n-a-n, 227 Wis. 2d, 736, a Wisconsin Supreme Court decision of about 7 or 8 years vintage, 1999, affirming a Court of Appeals decision which I think was reported at 226 -- or 221 Wis. 2d, 126.

It's not a perfect match, but there we had jurors in trial number two who had rejected the defense presented in trial number one, by the same lawyer, and it was to be the very same defense in the second trial, both of them being operating while intoxicated cases.

As I understand Kiernan, the trial judge in trial number two refused to strike for cause jurors who had served in trial number one and rejected the same lawyer's presentation of the same defense.

That was held to be a matter that made the jurors objectively biased in trial number two. And the judgment was set aside by the Court of Appeals; and then the Court of Appeals, in turn, affirmed by the Supreme Court, as I understand the history of the case.

Again, not a perfect match. Trial number one and trial number two were very close in time, in Kiernan; here we have a period of six, seven years between trials. But, in some ways, this is a stronger case for objective bias because we're talking about the same witness in trial number one and in trial number two and a witness whose credibility clearly was at stake in trial number one and clearly will be at stake in trial two, here.

Detective Remiker is a member of Manitowoc County Sheriff's Department. He is a detective. He was actively involved in this investigation. He may have been the most prolific report writer among the entire Manitowoc County Sheriff's Department retinue.

He works directly for, and is supervised by, Lieutenant James Lenk, a critical figure in this case. And he was -- he, that is, Detective Remiker -- was involved and testified to most of the significant searches in which physical evidence that the State has introduced, and will continue to seek to introduce, was seized and gathered.

Moreover, Detective Remiker was one of just two law enforcement officers who have testified to date, in this trial, to statements of the accused. And indeed there were only three witnesses who have offered any statements of the accused, if my memory serves; one, a citizen, Bobby Dassey, and then two law enforcement officers, Sergeant Colborn and Detective Remiker.

So his credibility is important here, probably quite important. Of the witnesses so far, the voice of Detective Remiker is the only witness voice these jurors heard in either parties opening statement, and that was in mine, when I played part of what is now Exhibit 126.

He's an important witness. Because I think the issue primarily is objective bias, it makes no sense, in the view of the defense, to question the juror. If the issue were subjective bias, then the juror's answers would be dispositive, in all likelihood, unless the Court had reason to question the voracity of the juror, by demeanor or statements.

But when the question is objective bias, as the scheme in Wisconsin for juror qualification is broken down, then it really doesn't matter if the juror denies a subjective bias. With objective bias we say, no, from a reasonable person's vantage point, this would not be considered an unbiased juror. So, while with an objective bias issue we don't gain anything by questioning a juror, we certainly do put something at risk if we do that and the juror has not been excused. The things at risk are this, as I see:

(A) Because we are mid-trial, we risk meddling, in a subtle way, with the deliberate process of this juror and potentially with the entire jury. Because this juror specifically will be instructed to set aside both her prior experience with Detective Remiker, in a virtually identical role, sworn as a witness, and that she may not discuss with the other 11 jurors, if she's among the 12 who deliberate in this case, what she knows of, or brings to the courtroom of, Detective Remiker.

Now, it's one thing to extract that kind of a process in voir dire, before a jury is sworn. It is quite another, I think, mid-trial, with a sworn jury, and a member of that sworn jury, to start parsing what can and cannot be considered in deliberating on the credibility of the witness.

Now, understand me clearly, if she were to remain a member of this jury, she would have to be told that she cannot consider Detective Remiker's earlier role and that she cannot share that with these jurors, in this case. She would have to be told that.

But the likelihood that she understands that and that that doesn't chill her deliberative -- her proper deliberative process, or affect the deliberative process of the jury as a whole, it seems to me is low, or questionable. So there is, at least, that risk, (A), as I say.

(B) The risk of doing this is that, the fact that she's been pulled out, singled out, will either be understood by the jury or understood by her, and as being singled out, and as an instance that resulted in her being put under some special instructions that the other jurors are not under, and that -- that presents its own obvious problems, I think.

So, I think for -- for all of the reasons I have explained, this is not something the Court ought to undertake; that is, questioning the juror is not something the Court ought undertake. I also think that, on these circumstances, there is, at this point, on the information we have, reason to find objective bias and that the juror ought to be relieved of her further duties, with the thanks of the Court and the parties because, again, she's done the right thing by reporting to the Court the problem. And that's -- that's the view of counsel for Mr. Avery.

MR. STRANG: The defense moves to strike the juror for cause. We adhere to all of my earlier comments and I will add now, after hearing the juror, something on subjective bias and something more on objective bias. The Court, of course, has the province of assessing the juror's credibility and demeanor.

I thought it worthy of note that the juror, who is middle-aged -- that's going to get me in trouble with someone, but she certainly is a young person, not an elderly person -- and is describing a trial that, let's assume, happened in 2000 -- if it happened in 2000, it's really not so long ago, that's the year that President Bush first was elected, that's not a long time ago -- and professes here today not to remember, one way or the other, whether the plaintiff in the lawsuit was a witness at some point, during what she's thinks was about a one week trial; it's worth raising, just as a -- as a subjective matter. But I continue to see this primarily as a matter of objective bias.

And what I can add, to my comments earlier, is just the exclamation point that, when we have sitting in this jury, at a time when we have ample extra jurors and opportunity to err on the side of caution, when we have someone sitting as a juror, who previously has voted to award $100,000 to a witness in this case, there is not the reasonable appearance of impartiality and fairness. That just simply doesn't look fair.

So, if the Court can -- concludes that subjectively she's not biased, I think there's a real objective bias concern here, and that she ought to be relieved of further duty as a juror in this case.