Judge fumbled bias issue


Judge fumbled bias issue


Thursday, July 1, 2004

On the fourth day of jury selection in the trial of Ted Oswald, accused of taking part in a sensational crime spree that left a police captain dead in Waukesha County a decade ago, a prospective juror told the court that, on the basis of what he had learned from chatter in the jury pool, the defendant was guilty and the trial was a waste of time.

Had Waukesha County Circuit Judge Lee Dreyfus taken pains then to be scrupulously sure that jurors would still keep an open mind, a legal cloud would not now be hanging over this case. Dreyfus failed to act forcefully enough, however. So, citing jury bias in the original trial, the federal appeals court in Chicago ordered a new one.

The state is considering an appeal. Let’s forgo that and go straight to a new trial. The ruling makes a compelling argument that even unambiguously guilty suspects deserve an impartial jury.

Reasonable people can disagree over whether Dreyfus did enough to satisfy that basic right. The three-judge appeals panel was not unanimous; one member, Judge Terence Evans, an ex-Milwaukee jurist respected for his legal acumen, dissented. He argues that Oswald didn’t deny involvement in the crime spree; rather, the defense strategy was to convince the jury that he had been brainwashed into participating by his father, James Oswald, who was also convicted in the case. Thus, that some jurors may have thought Ted Oswald had participated was of little importance.

The majority, however, faulted Dreyfus for failing to question jurors enough on the issue of bias and for preventing Oswald’s lawyer from sufficiently exploring the matter. Dreyfus did ask a bailiff whether he had heard jurors talking about the case; the bailiff had not. And the judge entered the jury room to remind jurors that they mustn’t discuss the case.

Dreyfus should have done more to ensure impartiality, to satisfy even fussbudget appeals judges. He should have questioned jurors, one by one, about what they heard in the jury room. Yes, that would have slowed the process — but that’s better than repeating a trial.

Sometimes prospective jurors can’t help but to have formed opinions about a case. A judge must ascertain whether they are capable of putting those opinions aside and to reach conclusions based solely on testimony and evidence presented in court. The appeals court feels Dreyfus flubbed that duty.

The appeals court figures the outcome would likely have been the same even if the jury were impartial. Some judicial errors can be forgiven if they do no harm, but failure to check on jury bias is not one of them, the court notes.

“Even a clearly guilty criminal is entitled to be tried before an impartial tribunal,” the opinion, written by Judge Richard Posner, observes.

It can’t be said any better than that.

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