State v. Heather L. Westrich, 2022AP2001-CR, District 4, 05/25/23 (one-judge opinion, not eligible for publication); case activity (including briefs)

In State v. Lindell, 2001 WI 108, ¶¶42-43, 245 Wis. 2d 689, 629 N.W.2d 223, the court held a prospective juror to be objectively biased because she knew the victim for 20 years, her parents knew the victim for about 47 years, and she described the victim as a “close friend.” Apparently, a friend “back in the day” isn’t a close friend and doesn’t render a juror objectively biased. (Op., ¶¶14-15).

There’s not a whole lot more to see here. After the “friends back in the day” response, the court inquired about the relationship and the juror offered that “she was a grade ahead of me in high school” and that they were “just friends.” Asked whether the juror “could put the relationship aside and decide the case impartially and based upon the evidence and the court’s instructions,” the juror responded, “Yes.” Neither Westrich’s trial counsel or the prosecutor followed up with the juror, neither party asked the court to excuse the juror for cause, and neither party used a preemptory challenge to remove the juror, who served on the jury through the verdict. (Op., ¶¶2-3).

During Westrich’s postconviction Machner hearing, the circuit court explained that “I didn’t get any sense that they were close friends. I got the sense from the statements that it was like, ‘Oh, yeah, I had so-and-so in chemistry class and we were friendly.’” With regard to Westrich’s procedurally necessary claim of ineffective assistance of counsel, the court further explained that “I don’t think that there’s any way of finding that Ms. Westrich was prejudiced here. I am always interested in making a complete record for the Court of Appeals.” In a chummy footnote, the court of appeals acknowledged the court’s efforts and wrote, “And that is always appreciated.” (Op., ¶7, n.4).