                                                            2017 WI 27

                  SUPREME COURT           OF    WISCONSIN
CASE NO.:              2014AP2813-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Jeffrey P. Lepsch,
                                 Defendant-Appellant-Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:         March 31, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         November 9, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             La Crosse
   JUDGE:              Ramona A. Gonzalez

JUSTICES:
   CONCURRED:          ABRAHAMSON, J., joined by BRADLEY, A. W., J.
                       (except for the first sentence of ¶90) concur
                       (Opinion filed).
  DISSENTED:
  NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there was a brief
by Steven W. Zaleski, and Zaleski Law Firm, Madison, and oral
argument by Steven W. Zaleski.


       For the plaintiff-respondent the cause was argued by Sara
Lynn    Shaeffer,      assistant   attorney   general,   with   whom   on   the
brief was Brad D. Schimel, attorney general.
                                                                           2017 WI 27
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2014AP2813-CR
(L.C. No.    2012CF691)

STATE OF WISCONSIN                               :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                        FILED
      v.                                                           MAR 31, 2017

Jeffrey P. Lepsch,                                                    Diane M. Fremgen
                                                                   Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                   Affirmed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.             This is a review of an

unpublished decision of the court of appeals, State v. Lepsch,

No. 2014AP2813-CR, unpublished slip op. (Wis. Ct. App. Nov. 19,
2015) (per curiam), which affirmed the La Crosse County circuit

court's1     judgment     of   conviction   of       defendant     Jeffrey       Lepsch

("Lepsch") and order denying Lepsch's motion for postconviction

relief.




      1
          The Honorable Ramona A. Gonzalez presided.
                                                                          No.      2014AP2813-CR



       ¶2      A jury found Lepsch guilty of killing two individuals

during an armed robbery in La Crosse, Wisconsin.2                                  Lepsch was

sentenced to consecutive life terms in prison.                                  Before this

court,      Lepsch     argues     he   is    entitled       to     a   new   trial       due    to

alleged errors pertaining to jury selection and the jury Lepsch

received.

       ¶3      More      specifically,           Lepsch     presents         the     following

arguments: (1) Lepsch's right to a trial by an impartial jury

was violated because certain of the jurors in his case were

subjectively and objectively biased; (2) Lepsch's right to due

process       of   law    was    violated         because     of       circumstances       that

created the likelihood or appearance of bias and because of

alleged deficiencies in the circuit court's investigation into

and mitigation of these circumstances; (3) Lepsch's right to be

present      at    a   critical    stage         of   his   proceedings,         right     to   a

public trial, and right to a jury properly sworn to be impartial

were       violated    because     the      La    Crosse    County       Clerk      of   Courts

administered the oath to the prospective jurors in Lepsch's case




       2
       Lepsch was convicted of two counts of first-degree
intentional homicide, contrary to Wis. Stat. § 940.01(1)(a)
(2011-12), one count of armed robbery with use of force,
contrary to Wis. Stat. § 943.32(2) (2011-12), and one count of
possession of a firearm by a felon, contrary to 941.29(2)(a)
(2011-12). All subsequent references to the Wisconsin Statutes
are to the 2011-12 version unless otherwise indicated.


                                                 2
                                                               No.   2014AP2813-CR



outside of Lepsch's presence;3 and (4) Lepsch's right to receive

the proper number of peremptory strikes, to full use of those

strikes,    and    to   have   biased     jurors     removed   for    cause   was

violated by the circuit court. Lepsch explains that "all of the

issues litigated in this appeal have been raised via a claim of

ineffective assistance of counsel."4

     ¶4     We conclude that each of Lepsch's claims fails, and

that he is not entitled to a new trial. Consequently, we affirm

the decision of the court of appeals.

                  I.    FACTUAL AND PROCEDURAL BACKGROUND

     ¶5     On September 15, 2012, police were dispatched to a

store in La Crosse, WI.           The bodies of P.P. and A.P had been

discovered by a family member at the store; each had been shot

in the head.      There were also signs of a robbery.

     ¶6     On    October   10,   2012,     Lepsch    was   charged    with   two

counts of first-degree intentional homicide, contrary to Wis.

Stat. § 940.01(1)(a).          The following day, an amended complaint

was filed additionally charging Lepsch with armed robbery with
use of force, contrary to Wis. Stat. § 943.32(1)(a) and (2), and

     3
       As will be explained, this oath should not be confused
with the oath administered to the jury Lepsch ultimately
received prior to the commencement of his trial.      That is,
Lepsch is challenging the administration of the oath to the
prospective jurors prior to questioning of the prospective
jurors by the court, the State, and Lepsch's counsel; he does
not dispute that the jury chosen was thereafter properly sworn
by a clerk in Lepsch's presence in court at the start of his
trial.
     4
         But see infra n.5.


                                        3
                                                                          No.        2014AP2813-CR



possession of a firearm by a felon, contrary to 941.29(2)(a).

On October 25, 2012, at Lepsch's arraignment, Lepsch stood mute

and the circuit court entered pleas of not guilty on his behalf.

A few months later, the case was set for a jury trial.

      ¶7        Jury    selection      in    this     case       proceeded         as   follows.

Prior      to    the     date    of     jury       selection,          prospective         jurors

completed       paper    questionnaires            asking       dozens    of       questions     on

subjects ranging from the jurors' favorite television shows to

the     jurors'        views    on    various        legal       propositions.              These

questionnaires           required       a    signature           under        the       following

statement: "I affirm, under penalty of perjury, that I have

given    complete        and    honest      answers      to      all     of    the      questions

above."          The     parties       agreed       to   excuse          about       two    dozen

prospective jurors at least in part on the basis of the answers

provided.         On July 23, 2013, jury selection itself occurred.

Prospective jurors gathered in the "jury assembly room," where

they were sworn by the La Crosse County Clerk of Courts.                                        The

parties seem to agree that neither Lepsch nor his attorneys were
present when the oath was administered.

      ¶8        Certain prospective jurors were then brought into the

courtroom       for     individual      questioning         in    the     presence         of   the

court,     Lepsch,       and    his    attorneys.           A    number       of    prospective

jurors were excused.                 Next, remaining prospective jurors were

brought into the courtroom as a group and questioned in the

presence of the court, Lepsch, and his attorneys.                                        Finally,

Lepsch and the State were each given six peremptory strikes and
a panel of 15 jurors was selected.
                                               4
                                                                No.        2014AP2813-CR



    ¶9        From Wednesday, July 24, 2013, to Friday, July 26,

2013, and from Monday, July 29, 2013, to Tuesday, July 30, 2013,

Lepsch was tried before the jury.             There is no dispute that this

jury was properly sworn by a clerk in Lepsch's presence in court

at the start of his trial.          On July 30, 2013, the jury returned

a verdict of guilty as to all counts charged.                   On September 3,

2013, the circuit court sentenced Lepsch to two life sentences

without extended supervision for the homicide charges, a 40-year

term of imprisonment for the armed robbery charge, and a 10-year

term of imprisonment for the possession of a firearm by a felon

charge, all to be served consecutively.                 On September 4, 2013,

the judgment of conviction was entered.

    ¶10       On November 25, 2013, Lepsch filed a notice of intent

to seek postconviction relief, and on July 15, 2014, Lepsch

filed a postconviction motion for a new trial.               In his motion he

challenged       the      convictions    asserting       that         he      received

ineffective assistance of counsel.              On September 4, 2014, the

circuit court held a Machner hearing on Lepsch's motion.                            See
State    v.    Machner,    92   Wis. 2d 797,    285     N.W.2d 905          (Ct.   App.

1979).    On November 14, 2014, the circuit court denied Lepsch's

motion.

    ¶11       On December 2, 2014, Lepsch filed a notice of appeal.

On November 19, 2015, the court of appeals affirmed the circuit

court's judgment of conviction and order denying postconviction

relief    in    an     unpublished,     per    curiam     opinion.             Lepsch,

unpublished slip op., ¶1.


                                        5
                                                                    No.      2014AP2813-CR



     ¶12     On   December    4,     2015,      Lepsch   filed      a     petition    for

review in this court.             On May 11, 2016, this court granted the

petition.

                            II.    STANDARD OF REVIEW

     ¶13     "A claim of ineffective assistance of counsel is a

mixed question of fact and law."                State v. Ortiz-Mondragon, 2015

WI 73,     ¶30, 364 Wis. 2d 1, 866 N.W.2d 717 (quoting                          State v.

Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695).                             We

review the circuit court's findings of fact under a clearly

erroneous     standard,      but     independently          determine        the     legal

question of whether counsel's assistance was ineffective.                             Id.

(quoting Carter, 324 Wis. 2d 640, ¶19).

     ¶14     We "review[] constitutional questions, both state and

federal, de novo."           State v. Lagrone, 2016 WI 26, ¶18, 368

Wis. 2d 1,        878   N.W.2d 636          (quoting        State       v.      Schaefer,

2008 WI 25, ¶17, 308 Wis. 2d 279, 746 N.W.2d 457).

     ¶15     Other applicable standards will be discussed below.

                                   III.     ANALYSIS
     ¶16     Lepsch's appeal focuses on his ineffective assistance

of   counsel      claim.5          Lepsch       possesses     state       and      federal

     5
       The nature of the arguments Lepsch raises on appeal is
often unclear.   Although Lepsch raises numerous constitutional
claims in his brief, it is not until page 48 of that brief that
Lepsch states, "Due to trial counsel's failure to preserve the
issues at trial, all of the issues litigated in this appeal have
been raised via a claim of ineffective assistance of counsel."
Elsewhere in his brief, however, Lepsch appears to discuss
issues outside of the ineffective-assistance framework.      "We
cannot serve as both advocate and court," and we will not
develop Lepsch's claims for him.      Cemetery Servs., Inc. v.
                                                     (continued)
                                            6
                                                            No.     2014AP2813-CR



constitutional rights to the effective assistance of counsel.

U.S. Const. amends. VI, XIV; Wis. Const. art. I, § 7;6 Strickland


Wisconsin Dep't of Regulation & Licensing, 221 Wis. 2d 817, 831,
586 N.W.2d 191 (Ct. App. 1998). Except where otherwise noted——
namely, where Lepsch has developed an independent claim with
sufficient clarity——we do not address claims arising outside of
the ineffective assistance context.
     6
       The   Sixth   Amendment   to   the    United      States   Constitution
provides:

          In all criminal prosecutions, the accused shall
     enjoy the right to a speedy and public trial, by an
     impartial jury of the State and district wherein the
     crime shall have been committed, which district shall
     have been previously ascertained by law, and to be
     informed of the nature and cause of the accusation; to
     be confronted with the witnesses against him; to have
     compulsory process for obtaining witnesses in his
     favor, and to have the Assistance of Counsel for his
     defence.

U.S. Const. amend. VI.   The Fourteenth Amendment to the United
States Constitution provides in part:

           All persons born or naturalized in the United
     States, and subject to the jurisdiction thereof, are
     citizens of the United States and of the State wherein
     they reside. No State shall make or enforce any law
     which shall abridge the privileges or immunities of
     citizens of the United States; nor shall any State
     deprive any person of life, liberty, or property,
     without due process of law; nor deny to any person
     within its jurisdiction the equal protection of the
     laws.

U.S. Const. amend. XIV, § 1.              Article   I,    section    7   of   the
Wisconsin Constitution provides:

     In all criminal prosecutions the accused shall enjoy
     the right to be heard by himself and counsel; to
     demand the nature and cause of the accusation against
     him; to meet the witnesses face to face; to have
     compulsory process to compel the attendance of
                                                    (continued)
                                      7
                                                             No.     2014AP2813-CR



v. Washington, 466 U.S. 668, 686 (1984); State v. Starks, 2013

WI 69, ¶54, 349 Wis. 2d 274, 833 N.W.2d 146.                "The standard for

determining whether counsel's assistance is effective under the

Wisconsin Constitution is identical to that under the federal

Constitution."      State   v.     Thiel,    2003   WI    111,   ¶18   n.7,    264

Wis. 2d 571, 665 N.W.2d 305.          "First, the defendant must prove

that counsel's performance was deficient.                Second, if counsel's

performance was deficient, the defendant must prove that the

deficiency prejudiced the defense."              Carter, 324 Wis. 2d 640,

¶21 (citation omitted).          With regard to the first part of this

test, "[c]ounsel's conduct is constitutionally deficient if it

falls below an objective standard of reasonableness."                     Thiel,

264 Wis. 2d 571, ¶19 (citing Strickland, 466 U.S. at 688).                    With

regard to the second part of this test, "the defendant must show

that 'there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been   different.     A   reasonable        probability    is    a   probability

sufficient to undermine confidence in the outcome.'"                    Id., ¶20
(quoting Strickland, 466 U.S. at 694).

                            A.    Impartial Jury



       witnesses in his behalf; and in prosecutions by
       indictment, or information, to a speedy public trial
       by an impartial jury of the county or district wherein
       the offense shall have been committed; which county or
       district shall have been previously ascertained by
       law.

Wis. Const. art. I, § 7.


                                      8
                                                                      No.     2014AP2813-CR



      ¶17       In Lepsch's first ineffective assistance of counsel

claim, Lepsch argues his attorneys were ineffective in failing

to raise jury bias issues during jury selection.                            As a result,

he claims nine of the jurors in his case were biased, which

denied him his right to an impartial jury under the Wisconsin

and   federal      constitutions.                Lepsch    bases    this    challenge    on

various answers given in response to four questions on the pre-

trial questionnaires completed by the prospective jurors.                                He

argues     that    his     attorneys        were       ineffective    for    "failing    to

sufficiently        examine         and     challenge       prospective       jurors    for

cause."

      ¶18       We now present the four questions at issue. Question

30 of the questionnaire reads as follows: "You will be hearing

testimony from several police officers in this case.                               Do you

think     you    would     give     police       officers    more    credibility,      less

credibility or the same amount of credibility as other witnesses

who were not police officers?"                        The question contained spaces

for the prospective juror to check "more credibility," "less
credibility,"        or        "the       same       credibility,"    and     asked     the

prospective juror to explain his or her answer.                             Seven of the

twelve      jurors       who      sat      on     Lepsch's    case     answered        "more

credibility."7

      ¶19       Question       35     of    the       questionnaire        contained     the

following questions, among others: (1) "Have you ever expressed

      7
       These seven jurors were C.R., N.N., J.A., P.H., L.K.,
D.M., and R.F.


                                                 9
                                                             No.      2014AP2813-CR



the opinion that Mr. Lepsch was guilty?"; (2) "Do you have any

feelings at this time that you have made up your mind as to

Mr. Lepsch's     guilt?";   and    (3)     "IF   YES,   would    you    have    any

difficulty putting these feelings out of your mind if you were

chosen to be a juror?".           Each question was followed by spaces

for the prospective juror to check "Yes" or "No."                     Four of the

twelve jurors on Lepsch's jury answered that they had expressed

the opinion that Mr. Lepsch was guilty.8                Three of these same

four jurors answered that they "ha[d] . . . feelings" that they

had made up their mind as to Lepsch's guilt.9                    Each of these

three then answered that they would not have any difficulty

putting the feelings out of their mind if they were chosen to be

a juror.

      ¶20    Question 32 asked, "Do you have any problem with the

legal proposition that a defendant must be presumed innocent

unless and until the prosecution can prove he or she is guilty?"

And Question 34 asked a related question: "Do you think if the

state goes to the trouble of bringing someone to trial, the
person is probably guilty?"         Both questions left spaces for the

prospective juror to check "Yes" or "No," and both questions

asked for the prospective juror to explain his or her answer.

One   juror     answered    "No"    to     Question     32      (regarding      the

presumption     of   innocence)    but   then    explained      his    answer    as


      8
          These four jurors were J.T., J.A., M.F., and L.K.
      9
          These three jurors were J.T., J.A., and M.F.


                                      10
                                                                         No.   2014AP2813-CR



follows: "In general, no. But I do not believe that this should

be the case 100% of the time.                I believe that there are cases in

which there is immediate & overwhelming evidence (i.e. physical

evidence,        audio/video        evidence,      confessions,      etc.)      should    be

presumed guilty until trial [sic]."                        The same juror answered

Question 34 (relating to whether a person brought to trial is

probably guilty) as follows: "Probably?                      Yes.    Definitely?         Not

necessarily.            I   would    hope   that    the     courts   would      not    bring

someone in just so they have someone to try.                        I would hope there

would at least be a fair amount of evidence or cause before

bringing someone in."10

      ¶21    Before addressing the deficiency and prejudice prongs

of   Lepsch's      ineffective        assistance      of    counsel       claim,    we   set

forth      the    law       governing    juror      bias.      "The        United     States

Constitution and Wisconsin's Constitution guarantee an accused

an impartial jury."             State v. Mendoza, 227 Wis. 2d 838, 847, 596

N.W.2d 736 (1999) (citing U.S. Const. amends. VI and XIV; Wis.

Const., art. I, § 7).11                  "To be impartial, a juror must be
indifferent and capable of basing his or her verdict upon the

evidence         developed      at      trial."        State        v.     Faucher,      227

Wis. 2d 700, 715, 596 N.W.2d 770 (1999) (citing Irvin v. Dowd,

366 U.S. 717, 722 (1961)).




      10
           This juror was C.R.
      11
           See supra n.6.


                                             11
                                                                        No.    2014AP2813-CR



      ¶22    "Reviewing courts are properly resistant to second-

guessing the trial judge's estimation of a juror's impartiality,

for that judge's appraisal is ordinarily influenced by a host of

factors impossible to capture fully in the record——among them,

the prospective juror's inflection, sincerity, demeanor, candor,

body language, and apprehension of duty."                         Skilling v. United

States,     561    U.S.   358,       386   (2010).         "Prospective        jurors    are

presumed impartial" and Lepsch "bears the burden of rebutting

this presumption and proving bias."                      State v. Funk, 2011 WI 62,

¶31, 335 Wis. 2d 369, 799 N.W.2d 421 (quoting State v. Louis,

156   Wis. 2d 470,        478,       457    N.W.2d 484         (1990)).            "We   have

recognized        three   types       of    bias:        (1)    statutory      bias;     (2)

subjective bias; and (3) objective bias."                        State v. Smith, 2006

WI 74, ¶19, 291 Wis. 2d 569, 716 N.W.2d 482 (citing Faucher, 227

Wis. 2d at 716).          Lepsch argues that the jurors he challenged

were subjectively and objectively biased.

      ¶23    Subjective        bias    refers       to    "bias       that    is    revealed

through the words and the demeanor of the prospective juror."
Faucher, 227 Wis. 2d at 717.                  "[T]he circuit court sits in a

superior    position      to    assess      the   demeanor        and    disposition      of

prospective       jurors,      and    thus,   whether          they    are    subjectively

biased."     Id. at 718.         Accordingly, "we will uphold the circuit

court's factual finding that a prospective juror is or is not

subjectively biased unless it is clearly erroneous."                           Id.

      ¶24    The concept of objective bias relates to the question

of "whether [a] reasonable person in the individual prospective
juror's position could be impartial."                    Id.
                                            12
                                                        No.   2014AP2813-CR


    Objective bias . . . is a mixed question of fact and
    law.    "[A] circuit court's findings regarding the
    facts and circumstances surrounding voir dire and the
    case will be upheld unless they are clearly erroneous.
    Whether those facts fulfill the legal standard of
    objective bias is a question of law." Although we do
    not defer to a circuit court's decision on a question
    of law, where the factual and legal determinations are
    intertwined as they are in determining objective bias,
    we   give   weight  to   the   circuit  court's  legal
    conclusion.    We have said that we will reverse a
    circuit court's determination in regard to objective
    bias "only if as a matter of law a reasonable judge
    could not have reached such a conclusion."
Funk, 335 Wis. 2d 369, ¶30 (citations omitted) (quoting Faucher,

227 Wis. 2d at 720-21).

    ¶25    In order to succeed on his ineffective assistance of

counsel   claim,   Lepsch   must   prove   that   his   attorneys   acted

deficiently during jury selection and that he was prejudiced by

this performance.     Our review demonstrates that none of the

jurors who sat on Lepsch's case were biased, either subjectively

or objectively, and that Lepsch was therefore not prejudiced by

the performance of his attorneys, even if the performance was

deficient in some respect (a question we need not decide).

    ¶26    The circuit court below explained, in denying Lepsch's

postconviction motion:

         From the court's position of being able to best
    determine   juror  bias,   the   court  is   absolutely
    convinced that each juror was able to put any
    potential biases out of their minds.      The court is
    absolutely certain that Lepsch was tried by a fair and
    impartial jury who decided the case based solely on
    the evidence before them. The court is unequivocally
    convinced that the jury agonized over its decision and
    gave Lepsch every benefit of the doubt.



                                   13
                                                        No.   2014AP2813-CR



    ¶27     Lepsch cannot establish ineffective assistance because

he cannot prove either objective or subjective bias.             Seven of

Lepsch's jurors stated in the questionnaire that they would give

police officers more credibility than witnesses who were not

police    officers.12    Five   of    these   jurors,    however,     were

specifically questioned on that answer, and the lawyers and/or

the court examined this belief and ensured that the jurors could

decide the case impartially.         To take just one example,13 the

court asked R.F. the following with regard to law enforcement

officers:

    [T]he question is, once they are sitting in the seat
    you're sitting in and they are a witness, can you
    judge them, the credibility, what they say based upon
    those things that we as human beings use as
    intangibles to determine people's credibility and not
    just cut them slack because they happen to be law
    enforcement?
R.F. responded, "Yes, Your Honor."         The court then confirmed,

"So you can -- you can look at them as you would any other

witness?" R.F. responded, "Yes."         Given our deference to the

circuit court on these types of questions, we will not displace




    12
       Lepsch argues that law enforcement testimony was a
central part of the State's case against him.  We can assume
that this is true for purposes of this appeal.
    13
       We do not provide transcript excerpts for the questioning
of each juror. However, questioning regarding the jurors' views
on police credibility and the jurors' answers to the questions
asked were substantially similar for purposes relevant to the
issues in this case.


                                 14
                                                                     No.    2014AP2813-CR



the circuit court's conclusion that these jurors were not biased

when they sat on Lepsch's case.

       ¶28    J.A.    and    D.M.      are    the   two     jurors    who     were      not

specifically questioned on this point.                      However, other aspects

of the jury selection process provide support for the circuit

court's rejection of Lepsch's claims of bias.                          Both J.A. and

D.M. checked "No" on their questionnaires next to the question,

"Is there any reason why you could not be impartial in this

case?"       And     D.M.   stated     elsewhere       on   his   questionnaire,         "I

believe in facts, not people."                 See, e.g., Griffin v. Bell, 694

F.3d 817, 823-24) (7th Cir. 2012) ("[Juror] Carel, of course,

never said that she could not be fair.                      At most, she indicated

that her first inclination, if faced with conflicting stories

from a police officer and a fourteen-year-old boy, would 'most

likely' be to believe the officer. . . . In this case, although

[juror]      Carel    expressed      an      initial    inclination        that   police

officers are more credible than teenagers, she never expressed

an irrational or unshakeable bias that indicated an inability or
unwillingness to faithfully and impartially apply the law.");

United States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998)

("In   the    abstract,      it   is    certainly       not   unreasonable        for    an

ordinary person to say she would generally tend to believe a

prison guard over a prison inmate.                     But that certainly doesn't

mean that in a given case, after hearing sworn testimony under

oath and considering all the facts and circumstances, that that

same juror would automatically believe a given guard over a


                                             15
                                                                              No.     2014AP2813-CR



given inmate. Generalized questions of the sort asked here are a

slim basis upon which to base a challenge for cause.").

       ¶29     Further,        both    J.A.         and       D.M.     were    present       during

questioning of the jurors as a group.                            Given the general tenor

of voir dire, the prospective jurors could not have "fail[ed] to

recognize that bias in favor of law enforcement officials was

inappropriate."           United States v. Lancaster, 96 F.3d 734, 742-43

(4th Cir. 1996) (reaching this conclusion in part because the

court    had       inquired     about      "bias         in    favor    of    law     enforcement

officials          resulting    from       a    relationship           with     a    relative     or

friend        in    law    enforcement").                  The       defense        informed    the

prospective jurors, "[T]here's no wrong answers, and I want you

guys to talk to me.             We're after an unbiased jury here, and it's

okay to have biases.                  We all have them."                  Topics touched on

during questioning by the defense were whether the police can

make    mistakes,         whether     it       is    important        that     law    enforcement

follow procedures, whether police "ever let bias get in the way

of     what    they're      looking        for,"          whether      "we     tend     to     trust
professionals [including police] a little more than we should

sometimes," and how to determine whether a professional such as

a policeman "has the right training or experience."

       ¶30     Moreover, earlier in voir dire, the State explained to

the prospective jurors, "both sides want people who are fair,

objective," later adding:

       [B]y now you've gotten               some pretty good ideas through
       the questionnaires and              all the questioning of the kind
       of things we want to                 know about people.    Is there
       anything that anybody                hasn't asked and you've just

                                                    16
                                                                          No.     2014AP2813-CR


       been sitting here waiting, why don't they ask me this
       because I really shouldn't be on this jury, but
       nobody's asked me why?     Is there anything that we
       haven't asked at this point, anyone who says, I should
       not be here; I can't be fair; and we just haven't
       asked the right question yet?
There was no response.               See Lancaster, 96 F.3d at 743 ("Under

these    circumstances,          the   district            court's    final       voir     dire

question——'Ladies and Gentlemen, do you know of any reason, is

there anything at all any of you know of that would make it

difficult for you to sit as an impartial juror in this case?'——
could not have failed to elicit an affirmative response from any

member       of    the    venire     harboring         a    bias     in    favor      of    law

enforcement officials." (citation omitted)).                           Again, given the

standard of review, we are not in a position to disturb the

circuit court's judgment that no bias existed on Lepsch's jury

in this regard.            Thus, even assuming Lepsch's attorneys should

have examined this matter further during jury selection in some

way,    Lepsch      has    not   proven      that      he     was    prejudiced       by    the

performance.

       ¶31    Lepsch's claims of bias regarding jurors who said they

had expressed an opinion on Lepsch's guilt or had made up their

mind as to Lepsch's guilt are also unpersuasive.                                Each of the

three    jurors      who    stated     "Yes"      on       their    questionnaires         when

asked, "Do you have any feelings at this time that you have made

up your mind as to Mr. Lepsch's guilt?" also stated "No" in

response      to    the    question     of        whether      they       would     have    any

difficulty putting these feelings out of their minds as jurors.
All four who stated they had "ever expressed the opinion that


                                             17
                                                                              No.     2014AP2813-CR



Mr.    Lepsch       was    guilty"       were     individually           questioned        in    some

manner as to whether they could base their decisions on the

evidence;         each     juror       verified       that    he    or    she    could      do    so.

Lepsch has not demonstrated that the circuit court's findings

regarding bias should be overturned as to these jurors, and he

has    not        shown        prejudice        with     respect         to     his    attorneys'

questioning of these jurors.

       ¶32     Finally, the juror who qualified his agreement with

the presumption of innocence and who agreed that if the State

goes to the trouble of bringing someone to trial, the person is

probably guilty, was informed that he would be instructed about

the presumption of innocence and that he had to "start out with

looking as Mr. Lepsch as he is innocent," that he is "innocent

as he sits here today."                    The juror was asked if he was "okay

with    that       principle,"          and     the    juror       affirmed      that      he    was.

Again, we see no prejudice resulting from the questioning of

this juror.

       ¶33        Before proceeding further, we note that Lepsch takes
issue with our             discussion of the law on juror impartiality,

contending that it is contrary to federal law insofar as it does

not require a "final, unequivocal" swearing by a juror that he

or she can set aside his or her beliefs and opinions and decide

the case solely on the evidence.                       Lepsch relies predominantly on

Patton       v.    Yount,        467     U.S.     1025       (1984),      citing       a   passage

explaining that in a "federal habeas corpus case in which the

partiality         of     an    individual       juror       is    placed      in     issue,"     the
question          before       the     reviewing        court       "is       plainly      one     of
                                                  18
                                                                  No.    2014AP2813-CR



historical fact: did a juror swear that he could set aside any

opinion he might hold and decide the case on the evidence, and

should       the    juror's   protestation        of     impartiality    have     been

believed."         Yount, 467 U.S. at 1036.

       ¶34    We disagree with Lepsch that Supreme Court case law14

dictates that a bright-line rule be applied in cases involving a

defendant's claim he did not receive an impartial jury.                         First,

it is important to consider the context of the single line in

Yount cited by Lepsch.            The Supreme Court was rejecting, on

federal habeas review, the view of the court of appeals below it

that "the question whether jurors have opinions that disqualify

them    is    a    mixed   question   of    law    and    fact"   such    that   "the

presumption of correctness due a state court's factual findings

under" federal habeas review was inapplicable.                    Id. at 1028-31,

1036.       Its focus in that passage was not the definition of the

substantive standard, but instead the notion that application of

the relevant standard was "not one of mixed law and fact" and

that "the statutory presumption of correctness" thus applied to
the trial court's determinations.               See id. at 1036-38.


       14
       Lepsch also cites a number of decisions issued by lower
federal courts.    We are not bound by these decisions.     See,
e.g., Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶68, 358
Wis. 2d 1, 851 N.W.2d 337 (explaining that the Seventh Circuit's
constitutional analysis was not binding on this court); cf.
Johnson v. Williams, 568 U.S. ___, 133 S. Ct. 1088, 1098 (2013)
("[T]he views of the federal courts of appeals do not bind the
California   Supreme   Court   when    it   decides  a   federal
constitutional question, and disagreeing with the lower federal
courts is not the same as ignoring federal law.").


                                           19
                                                                   No.     2014AP2813-CR



      ¶35     And   indeed,    the    Yount       Court      later       restated    the

applicable inquiry on habeas review as "whether there is fair

support in the record for the state courts' conclusion that the

jurors here would be impartial," adding,

      Jurors . . . cannot be expected invariably to express
      themselves carefully or even consistently. Every trial
      judge understands this, and under our system it is
      that   judge  who   is  best   situated   to  determine
      competency to serve impartially.       The trial judge
      properly may choose to believe those statements that
      were the most fully articulated or that appeared to
      have been least influenced by leading.
Yount, 467 U.S. at 1038-39 (emphasis added).                       This suggests an

amount of leeway inconsistent with the rigid rule proposed by

Lepsch.     See also id. at 1039-40 ("[I]n the case of alternate

juror Pyott, we cannot fault the trial judge for crediting her

earliest testimony, in which she said that she could put her

opinion     aside    '[i]f    [she]    had      to,'   rather      than     the     later

testimony in which defense counsel persuaded her that logically

she   would    need   evidence       to   discard      any    opinion       she     might

have."); id. at 1039 ("We think that the trial judge's decision

to seat [juror] Hrin, despite early ambiguity in his testimony,

was confirmed after he initially denied the challenge.                            Defense

counsel     sought    and     obtained         permission     to     resume       cross-

examination.        In response to a question whether [juror] Hrin

could set his opinion aside before entering the jury box or

would need evidence to change his mind, the juror clearly and

forthrightly stated: 'I think I could enter it [the jury box]
with a very open mind. I think I could . . . very easily.                              To


                                          20
                                                                   No.     2014AP2813-CR



say this is a requirement for some of the things you have to do

every day.'").

       ¶36   Recent     Supreme         Court     case      law     supports         our

understanding of Yount.        In Skilling the Supreme Court explained

that "[n]o hard-and-fast formula dictates the necessary depth or

breadth of voir dire," following that statement with a quotation

from one of its earlier cases: "Impartiality is not a technical

conception.      It is a state of mind.                 For the ascertainment of

this    mental     attitude        of     appropriate           indifference,        the

Constitution lays down no particular tests and procedure is not

chained to any ancient and artificial formula."                          Skilling, 561

U.S. at 386 (emphasis added) (quoting United States v. Wood, 299

U.S. 123, 145-46 (1936)).          Finally, Lepsch does not direct us to

any Supreme Court cases explicitly applying his interpretation

of the putative test from Yount.                 We agree with Lepsch that a

prospective juror must be able to "set aside any opinion he

might hold and decide the case on the evidence."                           Yount, 467

U.S. at 1036.         But, as a general matter, a circuit court need
not use or obtain any magic words in determining whether this

requirement has been met.

       ¶37   In sum, Lepsch has not provided sufficient reason to

upset the circuit court's determination that none of the jurors

who sat on Lepsch's case were biased, either subjectively or

objectively.          Thus,   even       assuming        that    Lepsch's      counsel

performed     deficiently     at     voir       dire,    Lepsch    has      failed   to

demonstrate that he was prejudiced by this performance and his
ineffective assistance of counsel claim must be rejected.                         C.f.,
                                          21
                                                                          No.       2014AP2813-CR



e.g., Peterson v. State, 154 So.3d 275, 282 (Fla. 2014) (per

curiam)       ("Peterson       cannot        demonstrate         prejudice          because     no

biased       juror     sat    on     his     jury.");      State     v.     Erickson,          227

Wis. 2d 758,         774,     596      N.W.2d 749         (1999)     ("more         than      rank

speculation" is needed "to satisfy the prejudice prong").

       ¶38     Lepsch also maintains that his right to due process of

law    was    denied       because     of    "circumstances         that       create[d]       the

'likelihood or the appearance of bias,'" Peters v. Kiff, 407

U.S.    493,     502       (1972)    (plurality         opinion),        and    because        the

circuit       court        "fail[ed]        to     conduct    a     sufficient          inquiry

regarding      such     circumstances."                Lepsch's    claim       is    stated     in

broad    terms       and     without       adequate      legal     development,         and    we

reject it.       As the circuit court explained:

             The court and both parties were aware that this
       case was going to be well-known in the community long
       before the trial ever began.    For that exact reason,
       the court took extra precaution to ensure an impartial
       jury, beyond what it would do for most jury trials.
       The extensive questionnaire sent out to the jurors was
       used to eliminate 24 jurors who exhibited a bias
       indicating they could not sit as objective jurors,
       before they ever reported for jury duty and by the
       agreement of both parties.      After those potential
       jurors had been eliminated, the potential jurors who
       reported were brought into the courtroom one at a
       time.    They were questioned by the court and both
       parties regarding pretrial publicity, their ability to
       decide the case only on the evidence presented, and
       about any potentially problematic answers on their
       questionnaire.   More jurors were excused during this
       process. Then voir dire began as it normally would.
(Footnote      omitted)       (citations         omitted.)         The    circuit       court's

careful      administration          of     jury      selection    and    the       verbal     in-
person questioning that took place cured any possibility of the

                                                 22
                                                   No.   2014AP2813-CR



"likelihood or the appearance of bias" at least as outlined in

the arguments Lepsch has made.15       We conclude that he was not

denied due process.16

    B.     Administration of the Oath to the Prospective Jurors

     ¶39    Next, Lepsch argues that the swearing of prospective

jurors outside of his presence by the La Crosse County Clerk of

Courts violated his rights to be present at all critical stages

of a criminal proceeding, to receive a public trial, and to

receive a trial by an impartial jury.        He contends that his

trial attorneys were ineffective in failing "to ensure that the




     15
       Lepsch makes passing reference to certain answers given
by his alternate jurors.   These jurors were excused prior to
deliberation.   Lepsch does not explain why these jurors are
relevant to the inquiry, and we will not construct an argument
for him. See Cemetery Servs., Inc., 221 Wis. 2d at 831.
     16
       It is unclear whether Lepsch means to discuss this claim
in the context of ineffective assistance of counsel. He does not
specifically do so (except for his general statement near the
end of his brief that "all of the issues litigated in this
appeal have been raised via a claim of ineffective assistance of
counsel"). For example, Lepsch states, "[I]rrespective of trial
counsel's performance and obligations, the trial court had an
independent obligation to ensure that the voir dire in the case
was conducted according to 6th Amendment principles . . . ." In
any event, if Lepsch is arguing his lawyers should have objected
and raised the arguments Lepsch raises now, we conclude that,
even assuming deficient performance of some kind, Lepsch was not
prejudiced by it because there was no denial of due process.


                                  23
                                                                  No.    2014AP2813-CR



trial court properly administered the oath to the jury venire in

Lepsch's presence."17

     ¶40    To be clear, Lepsch does not dispute that the jury he

ultimately received was properly sworn by a clerk in Lepsch's

presence in court at the start of his trial.                         See Wis. Stat.

§ 756.08     (2013-14).             Instead,      he    is     asserting       alleged

deficiencies with regard to the administration of the oath to

the prospective jurors prior to questioning of the prospective

jurors by the court, the State, and Lepsch's counsel.

     ¶41    Lepsch's          briefing         essentially        discusses           his

constitutional       rights    at    voir      dire.     We    are     thus   able     to

immediately dismiss most of Lepsch's argument because he was, in

fact, present at        voir dire.          Black's Law Dictionary             defines

"voir dire" as "[a] preliminary examination of a prospective

juror by a judge or lawyer to decide whether the prospect is

qualified     and    suitable       to   serve    on    a     jury,"    adding    that

"[l]oosely,    the    term     refers     to    the    jury-selection         phase    of

trial."     Voir dire, Black's Law Dictionary 1805 (10th ed. 2014).
We decline to adopt Lepsch's more expansive conception of voir

dire, according to which proceedings involving management of the

     17
       Other than a cursory reference to his right to be present
"with counsel," Lepsch does not brief a distinct claim that he
was denied the right to counsel when the prospective jurors were
sworn, see, e.g. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004), or
explain how we should analyze such a claim.         Instead, he
repeatedly focuses on his own right to be present. Thus, we do
not address the question. See State v. Gracia, 2013 WI 15, ¶28
n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("[W]e do not usually
address undeveloped arguments.").


                                          24
                                                                 No.     2014AP2813-CR



jury pool occurring prior to the entry of the prospective jurors

into    the     courtroom     are     given       constitutional       significance.

Lepsch has not sufficiently explained why voir dire encompasses

the administration of the oath to the prospective jurors any

more than it encompasses the completion of the questionnaires by

the prospective jurors prior to the start of trial.

       ¶42    Similarly, we reject as meritless Lepsch's contention

that the circuit court, not a clerk, was required by statute to

administer the oath.         Lepsch cites Wis. Stat. § 805.08(1) (2013-

14), which states that:

       The court shall examine on oath each person who is
       called as a juror to discover whether the juror is
       related by blood, marriage or adoption to any party or
       to any attorney appearing in the case, or has any
       financial interest in the case, or has expressed or
       formed any opinion, or is aware of any bias or
       prejudice in the case.
Wis. Stat. § 805.08(1) (2013-14).                 In response, the State cites

Wis.    Stat.    § 756.001(5)       (2013-14),      which   states      that   "[t]he

clerk    of     circuit     court,    if        delegated   by   and     under    the

supervision of the judge responsible for administering the jury

system, may select and manage juries under policies and rules

established by the judges in that circuit court."                       Lepsch does

not appear to have much of a reply to this argument.                        Nor does

Lepsch explain how he was harmed by the putative error, other

than to point to his other constitutional claims.                        We dismiss

Lepsch's argument regarding the identity of the administrator of

the oath as undeveloped.             See State v. Gracia, 2013 WI 15, ¶28




                                           25
                                                                       No.    2014AP2813-CR



n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("[W]e do not usually

address undeveloped arguments.").

      ¶43      More   generally,       however,        Lepsch's       line   of    argument

relating to the administration of the oath to the prospective

jurors "ignores the[] day-to-day realities of courtroom life and

undermines society's interest in the administration of criminal

justice."        Rushen    v.   Spain,       464       U.S.    114,    119   (1983)       (per

curiam).       Clerks play a critical role in the daily functioning

of our court systems, and the procedures challenged by Lepsch

doubtlessly occur in courthouses throughout the State.                               Were we

to accept Lepsch's arguments, we would be casting doubt on the

clerks'     capacity      to    act,    as        clerks      routinely      do,     in    the

summoning and preparing of prospective jurors for the circuit

courts    of    the   State.       See,      e.g.,      Wis.     Stat.     § 756.04(9)(a)

(2013-14)         ("Prospective           juror            lists;          number;         how

compiled. . . . During          each    year,       the       clerk   of   circuit        court

shall provide the court with a sufficient number of names of

prospective jurors to meet the needs of the court."); § 756.05
(2013-14) ("Jury summons, when and how issued.                         At least 12 days

before the first day on which a jury is required to be present,

to create the jury venire, the clerk of circuit court shall

randomly select a sufficient number of prospective jurors from

the jury array created under s. 756.04 (9) who shall be summoned

to   appear     before    the   court     at      an    appropriate        time    for    jury

service.");           § 756.06(1)         (2013-14)              ("Jury           selection.

(1) Whenever an issue is to be tried before a jury, the clerk of
circuit court shall randomly select names from the jury venire
                                             26
                                                                       No.     2014AP2813-CR



until      the    desired    number     is        obtained      to    create     the      jury

panel.");        § 756.07    (2013-14)        ("Insufficient          jurors.        When     a

sufficient number of jurors cannot be obtained for a trial from

the jury venire supplied by the clerk of circuit court, the

court may order the sheriff to bring before the court persons in

the     vicinity       for   determination           by      the      court     of     their

qualification and ability to serve as jurors for the particular

trial.").        We decline to do so today.

      ¶44       Even   assuming   for    the       sake    of    argument      that    error

existed, Lepsch still cannot succeed.                     We first address Lepsch's

putative right to be present.                     Although he does not cite any

applicable constitutional provisions, Lepsch includes a pair of

court      of    appeals     decisions        in     his     brief     containing           the

proposition that "[t]he right to be present at jury selection

is . . . protected by the Sixth and Fourteenth Amendments of the

United     States      Constitution     and       Article       I,   Section    7    of     the

Wisconsin Constitution."18              State v. Harris, 229 Wis. 2d 832,

839, 601 N.W.2d 682 (Ct. App. 1999); see State v. Tulley, 2001




      18
           See supra n.6.


                                             27
                                                                    No.     2014AP2813-CR



WI App 236, ¶6, 248 Wis. 2d 505, 635 N.W.2d 807.19                        Additionally,

Wis.    Stat.      § 971.04(1)(c)     (2013-14)      states    that,        subject    to

certain      exceptions,       "the   defendant      shall    be     present: . . .

During voir dire of the trial jury."                 Wis. Stat. § 971.04(1)(c)

(2013-14).

       ¶45    We    observe    that   the    parties    at    times       discuss   this

claim in terms of harmless error analysis. And indeed, there is

case law supporting such an approach.                   See, e.g., Tulley, 248

Wis. 2d 505, ¶7 ("[D]eprivation of . . . the defendant's right

to be present . . . during voir dire is reviewed on appeal for

harmless error." (citing Harris, 229 Wis. 2d at 839-40)); Spain,

464 U.S. at 117-18 n.2 ("right to be present during all critical

stages       of    the     proceedings"     is    "subject     to     harmless-error

analysis").         Yet, without much explanation, the parties also

address the claim as one of ineffective assistance of counsel.

       ¶46    We    note    that   under    a    harmless    error    analysis,       the

State would bear the burden of establishing that any error was

harmless because it stands to benefit from such an error.                           See,
e.g., State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816

       19
       The Supreme Court has explained, "The constitutional
right to presence is rooted to a large extent in the
Confrontation Clause of the Sixth Amendment, but we have
recognized that this right is protected by the Due Process
Clause in some situations where the defendant is not actually
confronting witnesses or evidence against him." United States v.
Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (citation
omitted); see also State v. Alexander, 2013 WI 70, ¶26, 349
Wis. 2d 327, 833 N.W.2d 126.   The parties do not address this
important distinction, but we need not apply it to the facts of
this case given our holding.


                                            28
                                                                 No.   2014AP2813-CR



N.W.2d 270.       Conversely, pursuant to an ineffective assistance

of counsel analysis, the burden would be on Lepsch to establish

ineffective assistance of counsel.              See Carter, 324 Wis. 2d 640,

¶21.         Nevertheless,     whether    the    claim    is     addressed   under

harmless      error   review     or   under     the     rubric    of   ineffective

assistance of counsel, Lepsch is not entitled to relief.

       ¶47    Even if Lepsch had statutory and constitutional rights

to be present at the swearing of the prospective jurors, any

error    stemming     from     Lepsch's       absence    was     harmless.      The

La Crosse County Clerk of Courts swore in an affidavit:

       I was present with prospective jurors on July 23, 2013
       in the matter of State v. Lepsch . . . in the jury
       assembly room for jury selection. . . . Prior to
       having the jurors transported to the courtroom via
       elevator to be individually questioned, I performed
       the oath as required with all prospective jurors.
The circuit court below found that the prospective jurors were

indeed given the oath.           Further, as discussed, Lepsch has not

demonstrated that his jury was anything less than impartial. We

agree with the State that any error was harmless, and Lepsch

does not give us reason to conclude otherwise.                   See, e.g., State

v. Deadwiller, 2013 WI 75, ¶41, 350 Wis. 2d 138, 834 N.W.2d 362

(quoting Martin, 343 Wis. 2d 278, ¶45) ("[A]n error is harmless

if the beneficiary of the error proves beyond a reasonable doubt




                                         29
                                                                 No.        2014AP2813-CR



that the error complained of did not contribute to the verdict

obtained.").20

     ¶48    For similar reasons, under an ineffective assistance

of   counsel    analysis,       we     conclude      that    Lepsch's       attorneys'

failure to object to Lepsch's absence at the swearing of the

prospective     jurors    did    not    prejudice21         Lepsch    even     if   this

failure     constituted         deficient       performance.            Thiel,       264

Wis. 2d 571,     ¶20     ("In    order     to     demonstrate        that     counsel's

deficient      performance       is    constitutionally        prejudicial,          the

defendant   must    show   that       'there    is   a    reasonable        probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.                    A reasonable probability




     20
       With regard to this harmless error analysis, on the last
page of his reply brief Lepsch directs the court to his
discussion of "actual prejudice" on page 43 of his brief-in-
chief. However, page 43 of his brief-in-chief discusses "actual
prejudice" with regard to his public trial argument. As will be
shown, these claims of prejudice fail.     They likewise do not
establish that reversal is required under a harmless error
analysis.     State v. Deadwiller, 2013 WI 75, ¶41, 350
Wis. 2d 138, 834 N.W.2d 362 (quoting State v. Martin, 2012 WI
96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270).
     21
       Although Lepsch combines all of his constitutional claims
relating to administration of the oath together for purposes of
his argument pertaining to ineffective assistance of counsel and
argues that "the failure to properly administer the oath to
prospective jurors amounted to structural error," he does not
argue that we should presume prejudice with regard to this
specific error.    Instead, we understand Lepsch to argue that
structural error arose with regard to violations of his rights
to an impartial jury and to a public trial.     We discuss these
claims elsewhere in this opinion.


                                         30
                                                                          No.    2014AP2813-CR



is    a        probability      sufficient       to    undermine     confidence           in   the

outcome.'" (quoting Strickland, 466 U.S. at 694)).22

          ¶49     Second,       we     conclude        that,    contrary        to     Lepsch's

contention, Lepsch has forfeited his claim that the swearing of

prospective jurors outside of his presence violated his right to

receive a public trial by failing to raise an objection below.

"The Sixth Amendment to the United States Constitution provides

an accused the right to a public trial . . . . The Supreme Court

has determined that the public trial right is applicable to the

states          based      on     its       incorporation       into      the        Fourteenth

Amendment."23           State v. Pinno, 2014 WI 74, ¶40, 356 Wis. 2d 106,

850 N.W.2d 207 (citing Presley v. Georgia, 558 U.S. 209, 211-12

(2010)          (per    curiam)).           In   Pinno     we   "decline[d]          to    allow

defendants who failed to object to the closure of a courtroom to

raise that issue for the first time after the trial is over,"

and concluded that "the Sixth Amendment right to a public trial

may   be        forfeited       when    a   defendant     knows    that    the       judge     has

ordered the public to leave the courtroom but does not object."
Pinno, 356 Wis. 2d 106, ¶63.

          ¶50     Lepsch    argues      Pinno     is    inapposite     because        "[a]t     no

time during the proceedings did the trial court inform Lepsch

that the oath to the prospective jurors would be administered in

          22
       We decline to address, as undeveloped, Lepsch's aside
that the administration of the oath violated SCR ch. 71
("Required Court Reporting"). See Gracia, 345 Wis. 2d 488, ¶28
n.13.
          23
               See supra n.6.


                                                 31
                                                                   No.   2014AP2813-CR



the 'jury assembly room' by the clerk rather than the judge in

open    court."     We    agree    with     the   statement       of   the   court   of

appeals: "Clearly, Lepsch was aware at the time of the jury voir

dire that the oath had not been administered to the jury venire

in his presence in open court.                    Lepsch has not provided any

support for his assertion that he was unaware of the manner in

which the oath had been administered to the jury venire at the

time of voir dire."         Lepsch, unpublished slip op., ¶7.24

       ¶51   Lepsch      argues    Pinno     should   not    be    applied     because

"Lepsch can show actual prejudice."                   Lepsch argues that "[t]o

the extent that the administration of the oath was defective,

which Lepsch maintains it was, it precluded him from receiving a

trial by an impartial jury."               It is not clear what Lepsch means

by   this    line   of    reasoning       given   that   Pinno's       discussion    of

prejudice     occurred      in    the   ineffective      assistance      of    counsel

context,     see    Pinno,        356   Wis. 2d 106,        ¶¶81-91,     and    Lepsch

seemingly     makes      this    argument    independent      of   any   ineffective

assistance of counsel claim.
       ¶52   In any event, the argument cannot succeed because the

manner of the administration of the oath did not "preclude[]

[Lepsch] from receiving a trial by an impartial jury."                          Lepsch

states that "[i]f a juror is not sworn or not sworn properly,

then that juror cannot be deemed to be an 'impartial' juror for

       24
       In fact, at least before this court, Lepsch does not
appear to specifically assert that he was unaware of the manner
in which the oath had been administered——he simply states he
should have been provided notice.


                                            32
                                                             No.     2014AP2813-CR



the 6th Amendment or Article 1, Section 7 [of the Wisconsin

Constitution]."        But   this   case   does   not     involve    prospective

jurors who were not sworn, as the affidavit of the La Crosse

County Clerk of Courts confirms.            And Lepsch does not explain

why the two potential defects he identifies——that the oath was

administered by a clerk rather than the circuit court and that

Lepsch was absent at the administration of the oath——means that

the jury was not "sworn properly" for purposes that would be

relevant   to   the   impartiality    of   his    jury.      In     other   words,

Lepsch's statement that the manner of administration of the oath

meant that his jury was not impartial is simply conclusory.25

Without more, we are unable to conclude that Lepsch's jury was

not impartial.        Accordingly, we apply Pinno and conclude that

Lepsch's claim is forfeited.26

     25
       If Lepsch means to suggest that other defects existed, he
does not identify them.
     26
       Lepsch adds, at the end of his argument, that "[I]n
addition to the prejudice caused immediately to Lepsch by the
public trial violation, prejudice also existed as to the public
at large and the media, both of which had an obvious and
compelling interest in maintaining an open court."    This is an
argument that implicates the First Amendment, among other
sources of law, see State v. Pinno, 2014 WI 74, ¶70, 356
Wis. 2d 106, 850 N.W.2d 207, and requires greater development
before we will consider it.    It is unclear, for instance, how
Lepsch's statement fits into his general argument and why the
proposition he recites would require us to determine that he had
not forfeited his claim.       We do not address it further.
Cemetery Servs., Inc., 221 Wis. 2d at 831 ("Constitutional
claims are very complicated from an analytic perspective, both
to brief and to decide.    A one or two paragraph statement that
raises the specter of such claims is insufficient to constitute
a valid appeal of these constitutional issues to this court.").


                                      33
                                                                     No.     2014AP2813-CR



    ¶53        Having     concluded       that    Lepsch's        claim      is     indeed

forfeited, we proceed to Lepsch's contention that his attorneys'

failure to "ensure that the trial court properly administered

the oath to the jury venire in Lepsch's presence constituted

ineffective       assistance       of     counsel."           With    regard       to   the

prejudice prong of the analysis, Lepsch's argument consists of

two sentences.          First, "In terms of prejudice, Lepsch suffered

actual prejudice in that an improperly sworn jury did not and

could    not    constitute     an       impartial      jury."        We    have    already

rejected this argument.            Second, "In the alternative, this Court

should    presume       prejudice   given       that    the     failure     to    properly

administer the oath to prospective jurors amounted to structural

error."    We read this vague argument to refer back to Lepsch's

earlier   argument:       "[T]he    improper        administration         of     the   oath

created two different structural errors.                         The first directly

pertained to Lepsch's right to a public trial and the second

pertained to Lepsch's right to an impartial jury."                              Because we

have concluded that Lepsch's right to an impartial jury was not
violated by the administration of the oath by the clerk outside

of his presence, we need only address ineffective assistance as

it pertains to Lepsch's first claim related to his right to a

public trial.

    ¶54        In Pinno we concluded that a presumption of prejudice

was not appropriate in cases involving "the denial of the right

to a public voir dire."             Pinno, 356 Wis. 2d 106, ¶85.                    Below,

the court of appeals remarked that Lepsch had "not developed an
argument distinguishing the claimed structural errors in this
                                           34
                                                                   No.    2014AP2813-CR



case from the errors in Pinno, id., ¶¶83–86, which were deemed

not   to    give   rise   to     a    presumption     of   prejudice."          Lepsch,

unpublished slip op., ¶8.                 Lepsch has not altered his approach

before this court.         Therefore, we reject his argument.                Finally,

we note that Lepsch has not demonstrated that he was prejudiced

in any other way by his attorneys' failure to object to the

manner of the administration of the oath.                     We conclude that he

was not denied the effective assistance of counsel with regard

to this claim.27

                            C.       Peremptory Strikes

      ¶55     Finally,     Lepsch         argues    that   the     circuit      court's

failure to award him the proper number of peremptory strikes,

along      with   its   failure      to    strike   certain      jurors   for   cause,

violated his rights to due process of law and to an impartial

jury.       Lepsch argues that he was given six peremptory strikes

rather than the seven to which he was entitled, and that he was

forced to exhaust his strikes on jurors who should have been

dismissed for cause, such that he was unable to dismiss the
jurors who actually sat on his jury.                       He contends that his

attorneys were ineffective in failing to object to receiving an



      27
       Additionally, we reiterate our earlier rejection of
Lepsch's argument that voir dire encompasses the administration
of the oath to the prospective jurors in the first place.     He
has not adequately explained why the administration of the oath
to the prospective jurors in the jury assembly room, if not part
of voir dire, would nevertheless violate his right to a public
trial.


                                            35
                                                             No.   2014AP2813-CR



incorrect      number    of    peremptory    strikes   and    in   failing   to

challenge certain jurors for cause.

       ¶56    There seems to be no dispute that both Lepsch and the

State were entitled to seven peremptory strikes under the law

but were only given six each.               See Wis. Stat. § 972.03 (2013-

14).    Nevertheless, we conclude, again, that even if Lepsch's

attorneys performed deficiently in not raising the appropriate

objections      and   challenges,   Lepsch     was   not   prejudiced   by   the

performance.

       ¶57    As has been stated, Lepsch has not shown that any of

his jurors were biased.          With regard to Lepsch's complaint that

he was entitled to an additional peremptory strike, this case is

therefore not unlike           Erickson, where both the State and the

defendant were granted four peremptory strikes rather than the

seven to which they were entitled.                Erickson, 227 Wis. 2d at

762.         Analyzing   the    defendant's    ineffective     assistance     of

counsel claim, we "decline[d] to presume prejudice every time

there [was] a denial of an equal number of peremptory strikes to
both the defense and the prosecution" and where "[t]here [was]

little doubt that [the defendant] was judged by an impartial

jury." Id. at 761, 777.          We then concluded that a determination

that actual prejudice existed was inappropriate: "In the end, we

can do no better than speculate on what would have been the

result of       [the defendant's]     trial had the circuit court not

erred, which is also the best that Erickson can offer." Id at

774. The same analysis applies in this case.


                                       36
                                                               No.    2014AP2813-CR



     ¶58        Second, assuming Lepsch was forced to use peremptory

strikes on jurors who should have been challenged for cause, the

error     did    not   in   fact   result   in   a   biased   juror   sitting   on

Lepsch's jury.          Consequently, the ineffective assistance claim

Lepsch has made28 fails.           See State v. Traylor, 170 Wis. 2d 393,




     28
       For the most part, Lepsch's argument hinges on his belief
that biased jurors sat on his jury.    However, Lepsch summarily
remarks, citing State v. Sellhausen, 2012 WI 5, 338 Wis. 2d 286,
809 N.W.2d 14, that "[w]here a defendant is forced to use most
or all of his peremptory strikes to strike jurors who should
have been properly excused by the trial court for cause, the
error is harmful."    Sellhausen's discussion of this point in
turn cited to State v. Lindell, 2001 WI 108, 245 Wis. 2d 689,
629 N.W.2d 223.     See Sellhausen, 338 Wis. 2d 286, ¶¶17-18.
However, Lepsch fails to note that Lindell examined whether
"[t]he substantial rights of a party are . . . affected or
impaired when a defendant chooses to exercise a single
peremptory strike to correct a circuit court error," and stated
it was "not called upon here to evaluate other situations."
Lindell, 245 Wis. 2d 689, ¶113 (emphasis added); see also id.,
¶119 (noting the State's concession that "reversal might be
appropriate when a circuit court judge . . . makes errors that
force a defendant to use most or all of his or her peremptory
strikes" (emphasis added)). In other words, the extent to which
the proposition of law cited by Lepsch is settled is not at all
clear.

                                                                      (continued)
                                        37
                                                                 No.     2014AP2813-CR



400,   489    N.W.2d 626    (Ct.      App.    1992)   ("Traylor        cannot   prove

prejudice unless he can show that the exhaustion of peremptory

challenges left him with a jury that included an objectionable

or incompetent member.           Wisconsin's longstanding rule is that

where a fair and impartial jury is impaneled, there is no basis

for concluding that a defendant was wrongly required to use

peremptory challenges." (citation omitted)).

                                IV.    CONCLUSION

       ¶59    We conclude that each of Lepsch's claims fails, and

that he is not entitled to a new trial.               Consequently, we affirm

the decision of the court of appeals.



       By    the   Court.—The   decision      of   the   court    of     appeals   is

affirmed.




     Despite this fact, Lepsch does not develop an argument
discussing the application of this proposition to his case at
all or the appropriateness of doing so, whether as an
independent claim or within the ineffective assistance of
counsel framework. As stated, most of Lepsch's argument depends
on his assumption——which we have rejected——that biased jurors
sat on his jury.    Moreover, were we to examine a claim that
reversal is warranted regardless of whether Lepsch's jury was
impartial or not, we would need to determine whether the circuit
court had indeed improperly failed to strike for cause the five
jurors Lepsch identifies.      Yet Lepsch's discussion of the
circuit court's putative errors in this regard is cursory.    We
decline to construct an argument for him and delve into this
area of law on the basis of an inadequately-developed argument.
Thus, we do not address this claim further.     Cemetery Servs.,
Inc., 221 Wis. 2d at 831.


                                         38
                                                                            No.    2014AP2813.ssa


       ¶60      SHIRLEY       S.    ABRAHAMSON,        J.       (concurring).             In   the

instant case, prospective jurors made statements either in their

responses to the jury questionnaire or at voir dire or both that

indicated they might not be impartial or that they might not be

able       to   apply    legal      principles.           The     circuit    court       and   the

attorneys questioned the prospective jurors to                                "rehabilitate"

them       to   enable    them          to   serve   on     the    jury.          The    question

presented in the instant case is whether one or more jurors were

biased notwithstanding the attempts at rehabilitation.1

       ¶61      Lepsch's      challenge        to    the    jury    is     grounded       on   the

ineffective         assistance           of    his     trial      counsel         to    challenge

prospective        members         of    the   jury.        Ineffective       assistance        of

trial       counsel      is    a        two-part     inquiry       under     Strickland         v.

Washington, 466 U.S. 668 (1984).                          The burden of proof in the

instant case is on Lepsch.                      He must show (1) that his trial

counsel         performed      deficiently;          and     (2)    that      the       deficient

performance prejudiced him.                     Because I conclude that the jury

was not biased, I conclude that trial counsel's performance was
not deficient in jury selection.                          I therefore do not need to

reach the prejudicial prong of the Strickland analysis.2

       1
       Wisconsin employs a tripartite classification of juror
bias:    statutory, subjective, and objective.     See State v.
Faucher, 227 Wis. 2d 700, 717-19, 596 N.W.2d 770 (1999).

     The federal courts do not use this terminology but use
analogous principles to discuss jury bias.
       2
           Jury bias is a structural error:

       When concluding in our previous cases that a juror was
       biased and was erroneously impaneled, the court has
       reversed the defendant's conviction and ordered a new
                                                       (continued)
                                  1
                                                                No.   2014AP2813.ssa


    ¶62      The   right   to    an    impartial   jury    is     guaranteed     by

statute and the federal and state constitutions.                      I begin with

Wis. Stat. § 805.08(1) (2015-16),3 which requires a court to

examine on oath each person who is called as a juror to discover

whether the juror has expressed or formed any opinion, or is

aware   of   any   personal     bias   or    prejudice    in   the     case.    The

statute enables any party to challenge a juror for cause and

    trial without inquiry into harmless error.         These
    cases reflect the rule that juror bias taints the
    entire proceeding and requires automatic reversal.
    Juror bias is a defect affecting the framework within
    which the trial proceeds, rather than simply an error
    in the trial process itself. Juror bias seriously
    affects the fairness, integrity, or public reputation
    of judicial proceedings and is per se prejudicial.

State v. Tody, 2009 WI 31, ¶44, 316 Wis. 2d 689, 764 N.W.2d 737
(footnote omitted), abrogated on other grounds by State v.
Sellhausen, 2012 WI 5, 338 Wis. 2d 286, 809 N.W.2d 14.
    3
        Wisconsin Stat. § 805.08(1) provides:

    Qualifications, examination. The court shall examine
    on oath each person who is called as a juror to
    discover whether the juror is related by blood,
    marriage or adoption to any party or to any attorney
    appearing in the case, or has any financial interest
    in the case, or has expressed or formed any opinion,
    or is aware of any bias or prejudice in the case. If
    a juror is not indifferent in the case, the juror
    shall be excused. Any party objecting for cause to a
    juror may introduce evidence in support of the
    objection.   This section shall not be construed as
    abridging in any manner the right of either party to
    supplement the court's examination of any person as to
    qualifications, but such examination shall not be
    repetitious or based upon hypothetical questions
    (emphasis added).

     All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                         2
                                                               No.    2014AP2813.ssa


introduce evidence in support of an objection.                        It sets the

standard for excusing a prospective juror:                 "If a juror is not

indifferent in the case, the juror shall be excused."                      Several

Wisconsin cases interpret and apply the statutory standard of

"indifferent."4

      ¶63   The   court       took   this     case    to     determine     whether

Wisconsin case law relating to juror bias is consistent with or

in   tension   with     the   United      States   Supreme     Court's    and    the

      4
       See, e.g., Tody, 316 Wis. 2d 689, ¶36.                Tody addresses the
statute as follows:

      "To be impartial, a juror must be indifferent and
      capable of basing his or her verdict upon the evidence
      developed at trial."      A juror therefore should be
      viewed as objectively biased if a reasonable person in
      the juror's position could not avoid basing his or her
      verdict upon considerations extraneous to evidence put
      before the jury at trial.

(Quoting Faucher, 227 Wis. 2d at 715.)

     Faucher,     227    Wis. 2d     at    715,    addresses    the    statute   as
follows:

      To be impartial, a juror must be indifferent and
      capable of basing his or her verdict upon the evidence
      developed at trial. Irvin v. Dowd, 366 U.S. 717, 722,
      81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).             The
      requirement that a juror be indifferent is codified in
      Wis. Stat. § 805.08(1) (1995–96).        That statute
      requires the circuit court to examine on oath each
      person who is called as a juror to discover if he or
      she "has expressed or formed any opinion or is aware
      of any bias or prejudice in the case."      Wis. Stat.
      § 805.08(1).   The statute directs that "[I]f a juror
      is not indifferent in the case, the juror shall be
      excused."     Id.     We have stated that even the
      appearance of bias should be avoided. [State v.]
      Louis,    156   Wis. 2d [470,]  478,  457    N.W.2d 484
      [(1990)]. (Footnote omitted.)


                                          3
                                                               No.   2014AP2813.ssa


Seventh Circuit Court of Appeals' interpretations of the Sixth

Amendment right to trial by "an impartial jury."                Lepsch and the

Office of the State Public Defender (which filed a non-party

brief) request this court to clarify Wisconsin's juror bias law

to resolve the perceived tension.5

     ¶64   The majority opinion fails to address this perceived

tension.    Instead,   it   merely       explains    in    a     footnote     that

Lepsch's   citations   to   "lower       federal    court"       decisions     are

unavailing and that this court is not bound by "lower federal

court"   decisions.    Majority      op.,    ¶35    n.14       (citing    Madison

Teachers, Inc. v. Walker, 2014 WI 99, ¶68, 358 Wis. 2d 1, 851

N.W.2d 337).

     ¶65   I address the issue of perceived tension and conclude

that any perceived tension arises because Wisconsin cases on

jury bias have apparently not considered Patton v. Yount, 467

U.S. 1025 (1984), and need to be harmonized.6

     5
       In Oswald v. Bertrand, 249 F. Supp. 2d 1078 (E.D. Wis.
2003), the federal district court granted habeas corpus to a
defendant convicted in a Wisconsin circuit court. The district
court ruled that the Wisconsin circuit court had failed to
comply with the Seventh Circuit requirement of an "unequivocal"
declaration by a juror.      In contrast, the federal court of
appeals affirmed the district court but concluded that the
inquiry the Wisconsin circuit court conducted "flunked the
constitutional test that 'the investigation be reasonably
calculated to resolve the doubts raised about the juror's
impartiality.'"   Oswald v. Bertrand, 374 F.3d 475 (7th Cir.
2004) (quoted source omitted).
     6
       For a discussion of the development of Wisconsin's juror
bias case law and the challenges that the case law has created
for the bench and bar, see Kurt F. Ellison, Getting Out of the
Funk:   How Wisconsin Courts Can Protect Against the Threat to
Impartial Jury Trials, 96 Marq. L. Rev. 953 (2013).


                                     4
                                                                No.   2014AP2813.ssa


    ¶66    I begin with the test set forth by the United States

Supreme Court, the supreme law of the land, which this court is

obliged to follow.        In Patton, 467 U.S. at 1036, 1038, 1040, the

United   States     Supreme     Court   stated      the    applicable     test   to

determine whether a prospective juror can suspend a belief or

opinion calling his or her impartiality into                    question.        The

Court also set forth the standard for appellate review of a

trial    court's        determination       of    the      prospective     juror's

impartiality.      This two-part test is as follows:

    Did a juror swear that he could set aside any opinion
    he might hold and decide the case on the evidence, and
    should the juror's protestation of impartiality [be]
    believed. . . . [T]he determination is essentially one
    of   credibility,   and  therefore   largely  one   of
    demeanor. . . . It is here that the federal court's
    deference must operate, for while the cold record
    arouses some concern, only the trial judge could tell
    which of these answers was said with the greatest
    comprehension and certainty.
Patton, 467 U.S. at 1036, 1038, 1040.

    ¶67    The Seventh Circuit Court of Appeals, also obliged to

follow the decisions of the United States Supreme Court, has
stated its own construction of the applicable test to determine

whether a prospective juror can suspend a belief calling his or

her impartiality into question.              The Seventh Circuit has also

set forth the standard for appellate review of a trial court's

determination      of    the   prospective       juror's    impartiality.        The

Seventh Circuit's two-part test has been stated in the following

formulations:

  • Marshall v. City of Chicago, 762 F.3d 573 (7th Cir.
    2014) (citing United States v. Allen, 605 F.3d 461,
    464-65 (7th Cir. 2010):

                                        5
                                              No.   2014AP2813.ssa

  The judge looks for an unwavering affirmation of
  impartiality, without which the juror should be
  excused.   The requirement is satisfied by a juror's
  affirmation, for example, that she can set aside any
  opinion she might hold, relinquish her prior beliefs,
  or lay aside her biases or her prejudicial personal
  experiences.   United States v. Allen, 605 F.3d 461,
  464-65 (7th Cir. 2010) (internal citations omitted).
  Ultimately, the decision whether to excuse a juror for
  cause rests firmly within the discretion of the
  district judge, and we will reverse only where we find
  an abuse of such. . . . (abuse of discretion occurs
  only where "no reasonable person would agree with the
  trial court's ruling").

• United States v. Allen, 605 F.3d 461, 464-65 (7th Cir.
  2010):

  [The mandates of due process and an impartial jury]
  are satisfied, when seating a prospective juror
  despite   a  party's   for-cause   challenge,   if   the
  prospective   juror   has  given    final,  unequivocal
  assurances, deemed credible by the judge, that for
  purposes of deciding the case, she can "set aside any
  opinion [she] might hold," Patton v. Yount, 467 U.S.
  1025,   1036 . . . (1984),    "relinquish   her    prior
  beliefs, [Thompson v. Altheimer & Gray, 248 F.3d 621,
  626], or "lay aside her biases or her prejudicial
  personal experiences, United States v. Gonzalez, 214
  F.3d 1109, 1114 (9th Cir. 2000).      See Thompson, 248
  F.3d at 626 (collecting cases).

  The district court was within its discretion to find
  that the prospective juror gave final, unequivocal,
  and credible assurances that she could set aside any
  bias . . . and decide the case on the evidence . . . .

  Prior equivocating or wavering is hardly dispositive
  in assessing credibility, as "[j]urors . . . cannot be
  expected         invariably          to        express
  themselves . . . consistently." . . . Because
  appellate judges are absent from voir dire, when a
  prospective juror fails to express herself "carefully
  or even consistently . . . it is [the trial] judge who




                             6
                                                      No.   2014AP2813.ssa

    is best situated to determine competency to              serve
    impartially." Patton, 467 U.S. at 1039 . . . .7
    ¶68   Examining   Marshall   and   Allen,   two   Seventh    Circuit

Cases, side-by-side, it becomes clear that Allen uses slightly

different language than Marshall.      Lepsch and the SPD's office

cite Allen as illustrating the tension among Patton, the Seventh

Circuit cases, and the Wisconsin cases on jury bias.

    ¶69   Language in some Wisconsin cases is similar to the

language in Patton and to the cases from the Seventh Circuit

Court of Appeals.     For example, this court stated in State v.

Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1999), that an

acceptable juror is



    7
       In United States v. Taylor, 777 F.3d 434, 441 (7th Cir.
2015), the Seventh Circuit Court of Appeals stated the
applicable test as follows:

    The requirement of an impartial jury is met when "the
    prospective   juror   has  given  final,  unequivocal
    assurances, deemed credible by the judge, that for
    purposes of deciding the case, she can set aside any
    opinion [she] might hold, relinquish her prior
    beliefs, or lay aside her biases or her prejudicial
    personal experiences." Allen . . . .

    A prospective juror does not come to the courtroom as
    a tabula rasa. The important question is whether the
    juror can put aside the experiences and beliefs that
    may prejudice his view of the case and render a
    verdict based on the evidence and the law.     Although
    R.W. was initially equivocal . . . the judge's follow-
    up examination cleared up the ambiguity.     The judge
    asked him if he "could be fair and impartial to both
    sides and decide this case only on the evidence
    introduced during this trial and the law that I am
    giving you."    To this question R.W. answered "yes"
    without qualification.    This unequivocal assurance——
    deemed credible by the trial judge——is sufficient.


                                  7
                                                                       No.    2014AP2813.ssa

      a reasonable person who is sincerely willing to set
      aside any opinion or prior knowledge that the juror
      might have.   Discerning whether a juror exhibits this
      type of bias depends upon that juror's verbal
      responses to questions at voir dire, as well as that
      juror's demeanor in giving those responses. These
      observations are best within the province of the
      circuit court (citation omitted).8
      ¶70    The   United     States       Supreme      Court       cases,    the      Seventh

Circuit     cases,     and    the    Kiernan       case     are      similar      in    three

important respects: (1) An individual can be seated as a juror

if he or she can set aside an opinion or bias; (2) the trial
judge     must     believe     the     prospective          juror's        statement       of

impartiality; and (3) appellate review is deferential because

the trial judge is best situated to determine a prospective

juror's ability to serve impartially.

      ¶71    The difference among the three courts, according to

Lepsch and the Public Defender, is the language in the Seventh

Circuit cases demanding that the prospective juror give "final,

unequivocal assurances" that he or she will set aside any bias

and   decide     the   case   on     the    evidence.          This    phrase,         "final,

unequivocal      assurances,"        does    not    appear      in    Patton.           Patton

seems to leave more room for trial court discretion in assessing

the   juror's      impartiality       than       does    the      "final,      unequivocal

assurances" language.

      ¶72    It is not surprising, then, that a careful reading of

the Seventh Circuit cases shows that the "final, unequivocal

assurances"      language     also     leaves      room     for      various      types    of


      8
       See also State v. Oswald,                     2000      WI    App     2,   ¶19,     232
Wis. 2d 62, 606 N.W.2d 207.


                                             8
                                                                        No.    2014AP2813.ssa


responses by a prospective juror and for trial court discretion

to evaluate those responses.                 A study of the Seventh Circuit's

applications        of   the    "final,      unequivocal         assurances"         language

demonstrates that the Seventh Circuit requires the bare minimum

of assurances.

    ¶73       For example, in United States v. Allen, 605 F.3d 461,

464–65 (7th Cir. 2010), the Seventh Circuit reviewed a district

court's    finding       that    a     juror       was    not   biased.            That   juror

initially submitted a juror questionnaire stating that she would

have a hard time being fair because of a prior incident.                                   Upon

questioning by the trial judge, the juror's answers reaffirmed

this belief.         But, upon further questioning (this kind of more

rigorous,      "digging        down"    type        of    questioning         is    sometimes

referred to as "rehabilitating" the prospective juror) the judge

instructed her that "both sides are entitled to fairness" and

asked   her    whether     she       could     keep      an   open    mind.         The    juror

replied that she could.                 Upon even further questioning, the

juror stated that she "would give [the defendant] the benefit of
the doubt until evidence was presented."                             The district court

judge decided that this juror was not biased.

    ¶74       The    Seventh     Circuit        affirmed        the    decision       of    the

district      court.       The       Seventh       Circuit      first    set       forth    the

applicable "final, unequivocal assurances" test as follows:                                 The

requirement of an impartial jury is met when

    the prospective juror has given final, unequivocal
    assurances, deemed credible by the judge, that for
    purposes of deciding the case, she can set aside any
    opinion [she] might hold, relinquish her prior


                                               9
                                                                          No.    2014AP2813.ssa

        beliefs, or lay aside her biases or her prejudicial
        personal experiences.
Allen,      605     F.3d      at    464-65     (internal      quotation          marks         and

citations omitted).

        ¶75    After       setting        forth    this     test,     the        Allen       court

emphasized        that     "[p]rior        equivocating      or     wavering       is    hardly

dispositive in assessing credibility, as '[j]urors . . . cannot

be                expected                  invariably               to                  express

themselves . . . consistently.'"                      Allen,        605     F.3d        at     466

(quoting Patton, 467 U.S. at 1039).

        ¶76    The     Allen        court     also    emphasized          that     "[b]ecause

appellate judges are absent from voir dire, when a prospective

juror         fails      to        express        herself     'carefully           or        even

consistently . . . it is [the trial] judge who is best situated

to determine competency to serve impartially.'"                            Allen, 605 F.3d

at 466 (quoting Patton, 467 U.S. at 1039).

        ¶77    Although the Allen court of appeals suggested that the

trial       court     could        have   engaged    in     more    rigorous,        explicit

questioning of the juror, the court of appeals accepted, as an

unequivocal statement, the juror's statement that she would give

the defendant "the benefit of the doubt."                           Allen, 605 F.3d at

466.9


        9
       In United States v. Allen, 605 F.3d 461, 466 (7th Cir.
2010), the Seventh Circuit Court of Appeals upheld the district
court's seating a juror despite her multiple equivocal and
unequivocal comments as follows:

        We do not doubt that the trial judge's questioning of
        the prospective juror could have been more explicit in
        determining whether she would be able to "set aside
        any opinion [she] might hold," Patton, 467 U.S. at
                                                        (continued)
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                                                                        No.    2014AP2813.ssa


      ¶78     Thus,    although     the   literal     language          in    the    Seventh

Circuit cases         requires "final, unequivocal assurances" that a

juror   is    impartial,     that      assurance     can     be    as     minimal     as    an

affirmative response to a judge's question whether the juror can

be impartial.         And, whatever the trial court's determination may

be, it is accorded substantial deference by an appellate court

because the trial court is in a position to judge the juror's

credibility.

      ¶79     Furthermore,       cases    from       other        federal       courts      of

appeals are cited by the Seventh Circuit.                         These other federal

courts do not use the same "unequivocal" language as the Seventh

Circuit.      These cases ask whether the prospective juror swore to

set   aside    any     opinion    or    bias   and    decide        the       case   on    the




      1036 . . . "relinquish her prior beliefs," Thompson,
      248 F.3d at 626, or "lay aside her biases or her
      prejudicial personal experiences," Gonzalez, 214 F.3d
      at 1114.   Nevertheless——given the relatively minimal
      bias the prospective juror must have had toward
      finding this particular defendant guilty, her final
      and unequivocal statement that she would give Allen
      the benefit of the doubt until the close of trial, and
      her demonstrated ability to follow the judge's
      instructions——we hold that the district court was
      within its discretion to find that the prospective
      juror' prior experience would not impede her ability
      to decide the case fairly. So we find no violation of
      Allen's rights to due process and to an impartial
      jury.


                                          11
                                                               No.   2014AP2813.ssa


evidence and whether the juror's protestation of impartiality

can be believed by the trial court.10

     ¶80     After    considering      Patton    and    the    Seventh    Circuit

cases, I turn to the Wisconsin jury bias decisions.

     ¶81     Although    several    of       Wisconsin's      jury   cases    were

decided after Patton, few cite Patton.

     ¶82     Reference to Patton appears in State v. Ferron, 219

Wis. 2d 481, 579 N.W.2d 654 (1998), abrogated on other grounds

by   State    v.     Lindell,   2001     WI    108,    245    Wis. 2d 689,     629

N.W.2d 223, in which the court cited Patton for the proposition

that "[i]t is a well-settled principle of law in this state that

a determination by a circuit court that a prospective juror can

be impartial should be overturned only where the prospective

     10
       See, e.g., United States v. Jones, 716 F.3d 851, 857 (4th
Cir. 2013) ("Although a juror's avowal of impartiality is not
dispositive, if a district court views juror assurances of
continued impartiality to be credible, the court may rely upon
such assurances in deciding whether a defendant has satisfied
the burden of proving actual prejudice." (citation omitted))
(citing Murphy v. Florida, 421 U.S. 794, 800 (1975)); Montgomery
v. Bobby, 654 F.3d 668, 684 (6th Cir. 2011) ("When presented
with an allegation of bias, the question is 'did a juror swear
that [s]he could set aside any opinion [s]he might hold and
decide the case on the evidence, and should the juror's
protestation of impartiality have been believed.'" (quoted
source omitted); finding no juror bias when judge asked whether
juror's self-reported bias would "have any effect on your
consideration of the matter that is before the jury now?" with
the juror responding, "No, no"); United States v. Rowe, 144 F.3d
15 (1st Cir. 1998) (explaining that the trial court finding of
no juror bias will be upheld unless clearly erroneous; finding
no bias where the trial court "asked Juror A whether his concern
would 'in any way impede or impair [his] impartial consideration
of the case,' and the juror assured the court that his
evaluation of the case would be impartial.") (juror's exact
response not provided in opinion).


                                        12
                                                                        No.   2014AP2813.ssa


juror's       bias      is    'manifest.' . . . The          United      States    Supreme

Court       has    frequently       ruled    to   the    same    effect.       See,     e.g.,

Patton v. Yount, 467 U.S. 1025, 1031-32 . . . ."

       ¶83        Ferron's reliance on this "manifest error" language is

of dubious value.               Patton discussed jury bias resulting from

pretrial publicity and explained that an amended habeas statute

may have replaced this "manifest error" standard.                             Patton, 467

U.S. at 1032 n.7.11

       ¶84        But, more importantly, as I read Wisconsin decisions

in which I joined almost twenty years ago, I see a problem:                               The

Wisconsin          cases      include       language     that     is    internally       and

externally inconsistent; language that is hard to understand and

apply; and language that does not conform to the Patton test.

       ¶85        In State v. Faucher, 227 Wis. 2d 700, 731 n.8, 596

N.W.2d 70 (1999), for instance, the court stated:                              "We remain

committed          to   our    view     that      a   prospective      juror     need    not

unambiguously state his or her ability to set aside a bias."

       ¶86        Likewise, in State v. Erickson, 227 Wis. 2d 758, 776,
596 N.W.2d 749 (1999), the court stated:                        "[A] prospective juror

need    not        respond     to     voir     dire     questions      with    unequivocal

declarations of impartiality.                     Indeed, we . . . fully expect a

juror's honest answers at times to be less than unequivocal."


       11
       I do not address the question whether pretrial media
coverage of Lepsch's case contributed to a biased jury.       The
parties did not raise it.    Pretrial publicity cases seem to be
analyzed somewhat differently than the question of the bias
exhibited by an individual prospective juror.    See Skilling v.
United States, 561 U.S. 358 (2010) (a pretrial publicity case).


                                               13
                                                                        No.   2014AP2813.ssa


    ¶87    That       said,    a   prospective          juror   who     equivocates      and

says, for example, that she can "probably" be fair, was declared

biased under Wisconsin law.             This court explained in Ferron, 219

Wis. 2d at 501, that equivocation bars a prospective juror from

serving because equivocation is insufficient to demonstrate a

sincere willingness to set aside a bias:

    There are no magical words that need be spoken by the
    prospective   juror,    and   the   juror   need    not
    affirmatively state that he or she can "definitely"
    set the bias aside.    Suffice it to say that without
    the appropriate follow-up questions by the circuit
    court,   a  juror's   final  word  of   "probably"   is
    insufficient to indicate a sincere willingness to set
    aside his or her bias against parties who choose to
    exercise   their   constitutional  rights.    (Emphasis
    added).
    ¶88    As     I     read       these     decisions,          they     are     somewhat

contradictory and fail to provide sufficient guidance to circuit

courts, the court of appeals, and this court.

    ¶89    I conclude, however, that the Wisconsin cases can be

harmonized and stated in conformity with United States Supreme

Court and Seventh Circuit Court of Appeals cases as follows:
         • An   impartial          juror    is    a   "reasonable        person    who    is

           sincerely willing to put aside an opinion or prior

           knowledge."          Faucher, 227 Wis. 2d at 724.

         • Although a prospective juror need not say any "magic

           words,"        the       record        must     demonstrate          that     the

           prospective          juror      (who    is    sworn    under       oath)12    has

           committed or assured that he or she can set aside any

    12
         See Wis. Stat. § 805.08(1); majority op., ¶¶40-43.


                                            14
                                                             No.    2014AP2813.ssa


  opinion     or    bias     held       and   decide       the     case       on    the

  evidence.

• Evaluating         the      subjective            sincerity           of         these

  expressions of impartiality of a prospective juror is

  a matter for the circuit court.                     The determination is

  essentially one of credibility.                      The expressions of

  the     prospective          juror          regarding          his         or     her

  impartiality are not conclusive.

• An appellate court "defers to a large extent to the

  decision of the circuit court about subjective [juror]

  bias    because      the     circuit        court    is     in        a    superior

  position     to     assess      the    demeanor      and       disposition            of

  prospective jurors," State v. Funk, 2011 WI 62, ¶76,

  335    Wis. 2d 369,        799       N.W.2d 421,         and     an       appellate

  court will reverse a circuit court's decision that a

  juror was subjectively biased only if the decision is

  "clearly erroneous."             Faucher, 227 Wis. 2d at 718.

• The    standard      of    an     appellate       court's        review          of   a
  circuit court's determination of objective juror bias

  is    set   forth    in    Faucher,         227   Wis. 2d        at       720:        An

  appellate        court     will       reverse      the     circuit          court's

  decision that a juror was objectively biased "only if




                                  15
                                                    No.   2014AP2813.ssa


           as a matter of law a reasonable judge could not have

           reached such a conclusion."13

         • Finally, an important guiding principle to be followed

           in every case is that the circuit court should err on

           the side of striking prospective jurors when it is

           reasonable to suspect that bias is present.14

    ¶90    This is a close case for me.15    In this concurrence, I

focus on two jurors, J.A. and D.M.       Each expressed the belief,

in answers to the questionnaire, that police officers were more

credible than other witnesses.        Neither the circuit court nor

either side's trial counsel sufficiently followed up with J.A.

or D.M. regarding their bias.   See majority op., ¶¶29-31.


    13
       The prospective juror in Faucher, 227 Wis. 2d at 731-32,
was unequivocal and unambiguous in stating he would follow the
law; the circuit court seated the juror.      Nevertheless, this
court concluded that the circuit court erred as a matter of law
in seating the juror.    The court reversed the circuit court,
concluding that under the circumstances of that case a
reasonable judge could not have believed that the prospective
juror could truly set aside his strongly held belief.
    14
       See, e.g., State v. Sellhausen, 2012 WI 5, ¶29, 338
Wis. 2d 286, 809 N.W.2d 14; State v. Lindell, 2001 WI 108, ¶49,
245 Wis. 2d 689, 629 N.W.2d 223; Kanzenbach v. S.C. Johnson &
Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956).

     This guiding principle rings true now more than ever. The
Sixth Amendment guarantee of an impartial jury and concern over
systemic loss of confidence in jury verdicts have moved the
United States Supreme Court to recently re-examine Batson claims
and the jury "no-impeachment rule" to eliminate racial bias in
the jury system. See Foster v. Chatman, 136 S. Ct. 1737 (2016);
Pena-Rodriguez v. Colorado, No. 15-606, 2017WL855760 (U.S. Mar.
6, 2017).
    15
         Justice Ann Walsh Bradley does not join this sentence.


                                 16
                                                                       No.    2014AP2813.ssa


       ¶91     That said, both answered "No" on their questionnaires

when asked whether there was any reason why they could not be

impartial.         Additionally, both J.A. and D.M. were present during

questioning of the jurors as a group, where questions regarding

police credibility arose and neither restated his or her bias.

And, finally, the State asked the group whether any prospective

jurors could not be fair; neither J.A. nor D.M. responded.

       ¶92     The circuit court and trial counsel in the instant

case could have (and should have) asked these two jurors more

rigorous,      explicit        questions      to    rebut      their     responses           that

indicated bias and to firm up their ability to set aside their

opinions and biases and base their decision on the evidence.

Nevertheless, the record is minimally good enough to demonstrate

that    each       juror    was    a   reasonable       person     who      was   sincerely

willing to put aside an opinion.                        Majority op., ¶¶29-31.                  I

conclude that the circuit court judge was in the best position

to determine whether these prospective jurors were subjectively

biased.      The circuit court's decision was not clearly erroneous.
With regard to objective bias, I conclude that I cannot reverse

the    circuit      court's       conclusion,      as   a    matter    of    law,       on   the

ground that a reasonable judge could not have reached such a

conclusion.

       ¶93     For the reasons set forth, I write separately.

       ¶94     I    am     authorized    to    state        that   Justice        ANN    WALSH

BRADLEY joins this opinion, except for the first sentence of

¶90.



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    No.   2014AP2813.ssa




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