Ashland, Wisconsin, is not a big place. Yes, it's "nestled along the shoreline of magnificent Lake Superior," as its Chamber of Commerce says, and yes, it's "a beautiful, close-knit community with an excellent variety of lodging, dining, recreation and attraction options." But with 8,795 people, it's fair also to call it little.
One of those people is Ashland County Circuit Court Judge Robert Eaton. Another one is his mom. And since he's the only judge up there, it was almost inevitable that someday a court reporter would take down this exchange in voir dire:
[Court]: Any of you have relatives employed in a law enforcement related capacity? Ms. Eaton, do you have a relative employed in the law enforcement related capacity?
[Juror] Eaton: The judge.
[Court]: I like – I like to consider myself part of law enforcement or I may be disowned. You are related to me how?
[Juror] Eaton: Your mother.
"Not a jury bias issue"
It was a case about a stolen Jeep, and Mrs. Eaton stayed on the jury, which reached a guilty verdict. The reason I know all this is that the case went to the Court of Appeals. The unpublished (and thus unprecedential) opinion is State v. Tody, released on Tuesday by the appellate court we call District III.
Let's face it: there are few towns of any size in all of District III, a huge swath of northern Wisconsin containing a lot more trees than people. If those counties started disqualifying jurors who know the judge, or even jurors who changed his diapers, they could deplete the jury pool pretty fast. That may be why the court of appeals had so little trouble upholding Judge Eaton's decision to let his mother stay. "[A] juror’s relationship to the judge is not, by itself, a jury bias issue. Unlike a State’s witness, a judge is not associated with either party. No bias is implicit from a relationship to a neutral party."
As for Mrs. Eaton herself, her voir dire answers were perfect. "Eaton did not say she had a 'favorable view of law enforcement,' or that she was 'pro-law-enforcement' or 'pro-prosecution.' [The defense had argued these were reasons she should have been dismissed.] From the available facts, we cannot conclude that a reasonable juror in Eaton’s position could not act impartially."
Mothers and wives
Cases where a juror was close to the judge come up from time to time, more often with spouses than with parents. There's the cute feature story of the judge's wife who cheerfully accepted her peremptory strike in Topeka. There's a please-let-it-be-apocryphal tale of Judge Irving Younger (I get to mention him twice in a week!) flirting from the bench with his juror wife (and later my property professor) Judith Younger. (Surely he didn't really ask, "Is there any woman on the panel who'd like to go home and sleep with me tonight?") And there's the harrowing story of New Jersey judge Andrew Smithson, who left his wife on a panel as a nondeliberating alternate. The defendant appealed, lost, and then filed a misconduct complaint. Judge Smithson wasn't punished, but a committee considering the complaint did find that Mrs. Smithson's presence on the jury "created an appearance of impropriety."
Next time . . .
Two things stand out in the Tody opinion as lessons for next time, both pretty basic. First, you need to be ready to lay the groundwork for cause strikes with good voir dire questions, regardless of how surprised you are to find yourself questioning the judge's mother while the judge looks on. It looks like the entire voir dire questioning of Mrs. Eaton for both sides amounted to this:
[District Attorney]: Mrs. Eaton, I know you’re the judge’s mother, do you feel comfortable sitting on a trial where he’s the judge but he’s not party in the case?
[Juror] Eaton: I don’t think it makes any difference.
[District Attorney]: Doesn’t make any difference one way or the other to you? You have no opinion about the defendant’s guilt or innocence?
[Juror] Eaton: I know nothing about it.
Tody’s attorney also addressed Eaton:
[Tody’s Attorney]: Do you feel you could be a fair and impartial juror? Would you have to explain to His Honor Judge Eaton, let’s say you voted for a verdict of not guilty, would you feel you would have to explain or justify why you voted that way?
[Juror] Eaton: No.
Second, Tody used his peremptory strikes on jurors who were not Mrs. Eaton. I don't know who those jurors were, and I might have made the same calls if I'd been there. But it's worth pointing out that of all the people who are likely to be strong leaders on a jury -- lawyers, journalists, sitting legislators -- the most influential of all might be the one person on earth who gives orders to the judge. If you're going to leave the judge's mother on the jury, you'd better like her a whole lot.
(Photo of the Ashland Marina on Lake Superior from the city's web site, http://www.coawi.org/node/361)
