State of Wisconsin v. Thomas G. Smith

8/15/2019 State of Wisconsin v. Thomas G. Smith

1/142

1

STATE

OF WISCONSIN

CIRCUIT COURT IOWA

COUNTY

2

3

STATE

OF

WISCONSIN

4

Plaintiff

12

CM

192

5

v.

May 30

2013

6

THOMAS G. SMITH

9:10

a.m.

7

Defendant.

8

9

TRANSCRIPT OF

JURY TRIAL

10

BEFORE THE

HONORABLE

WILLIAM D. DYKE

JUDGE PRESIDING

12

13

14 APPEARANCES:

15 FOR THE PLAINTIFF :

16

ATTORNEY

MATTHEW

C.

ALLEN

Asst. District Attorney

17

222

N. Iowa Street

Dodgeville Wisconsin

18

19

20

21

22

23

24

25

FOR

THE

DEFENDANT

COURT

REPORTER :

ATTORNEY THOMAS

B. AQUINO

Suite

1104

131

W Wilson

Street

Madison Wisconsin

53703

Denise Severson

RMR

Iowa

County Courthouse

222 N. Iowa Street

Dodgeville Wisconsin

608.935.0349

1


2/142

2

(The following proceedings were had in chambers.)

2

THE

COURT:

We have

State

versus Smith,

12

CM 192.

3 Appearances.

4

MR

ALLEN:

State

appears

by

ADA

Allen.

5 MR

AQUINO

: The defendant appears by his attorney

6

Thomas Aquino.

7

THE

COURT : A point came up

at the

outset

of t r ia l

8 and I think i t

was Mr

. Aquino .

9 MR

AQUINO

: Yes, Your Honor. Before when we were in

10

chambers

Mr

.

Allen

indicated

that

he was

likely to

object

to

11 the introduction of

the

other Facebook comments that were

12

made

in

response to

the Arena Police Department s Facebook

13

posting

on the grounds of hearsay. Your Honor , I intend to

1 4 refer

to

those

other

comments

during my

opening statement

15

because they are, I

think,

relevant

to

explain what Mr Smith

16 was responding to. I t puts Mr Smith s comments into

17

context. They

will

not be introduced for the purposes

of

the

18 truth of the

matter

inside

of those

comments . Specifically

19 the

allegations that

the police department was somewhat

20 racist in how they handled the underlying event , but just

21

that there were these

allegations

out

there

and that

22 Mr Smith was adding his own two cents about the situation,

23 and

also

i t

is

also -- I m also going to raise the point that

24

i t appears that

the

Arena Police Department deleted those

25

other

comments in

addition

to Mr . Smith s comments , wh

ich

is


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relevant to

the issue

of

the motivation

of the witnesses from

the state.

THE COURT: Mr .

Allen

.

R

.

ALLEN:

Your Honor, he

correctly

notes

I do

object on

hearsay

grounds. None

of

the other posters with

the exception

of

Dana Willey

are

here to

be

cross-examined

about their

e-posts or rationale. I

don t think that their

posts are at all relevant to the

content of

Mr

Smith s

posts.

Either

Mr

Smith s

posts

are

disorderly

and unlawful

electronic

messages

or

they

aren t.

And

I

don t

think

that

he should be gauged in reference to

other

people s comments ,

so for

those

reasons

I

think i t s

inappropriate

to allow the

other

comments

with the exception

of

Ms Willey,

and even

that comment has hearsay within i t where Ms Willey discusses

asking

an officer

specifically

what the juveniles looked

like , and

stating that his response is

that

they will

stand

out

because

they don t

belong

here, so we

have

got multiple

levels of

hearsay and irrelevancy.

Again,

Kim

Marks comment,

she notes she was

accused

of harboring

so-called dangerous fugitives, and she is

not

here

to

test ify about

that. I

think

on

balance

there is no

need

to bring the additional

posts

in

. I have no problem

with asking the

officer were there

other

posts,

yes, but not

going

into

what

those other

posts were , because I

don t think

i t s

relevant

to Mr

. Smith s posts .


4/142


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5

1

lot

in. Because

as

I see i t , this

is part

now of common

2 everyday language, everyday talk . Is this to be expected

3

from

our

communities? I see

that

as something

evolving

here.

4

So

I m going

to

go kind

of gently

on

your use

of

the

milieu.

5 Also in terms of what some of the specifics are I m going to

6

hear

M

. Allen on his objection.

Did I successfully

confuse

7 the matter

now?

8 MR AQUINO: My

question

is can I refer to the

9 comments in my opening

statement?

10

THE

COURT:

You

can say

that

there

was

a

series

of

1 1 comments that were posted . These grew

out

of

that

12 conversation.

13 MR .

ALLEN:

But not make specific comment about what

14 those

comments were at

least

in opening?

1 5 THE COURT : No No , I don t think

we

need

to

.

16 think

as

the case evolves

this

stuff

is

going

to

come out.

17 MR

AQUINO : Okay. Well, I guess for

the

record I

18 would object to not being allowed to

read

the

specific

19 comments of Kim Marks and Dana

Willey

in order

to

put

my

20 client s comments, which will

be

read

to

the

jury

during the

21 opening

sta

t ement, I object

to not

being allowed

to

put them

22 in context in

my

opening

statement

.

23 THE

COURT: I

respect

your

objection. I t s

24 well-founded

. I must , however , because those people

could

25

have been brought i n and

test i f

i ed, that they

are

not

on the


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witness

l is t . I t s not intended -- apparently we're not

intending to hear

from them, and I

think that is the

distinction.

MR

AQUINO:

Well, Your Honor, one

of the

witnesses

will be here. Ms. Willey will be here, so

she'll

be

able to

authenticate her

comment.

THE COURT: The

witness

is

going to be called?

MR AQUINO:

Yes

.

THE

COURT:

Do I have

to

add

that to the l i s t of

witnesses?

MR ALLEN: You have Ms.

Willey.

6

MR AQUINO:

May

I

refer to her --

may I

refer

to her

specific comment

during

opening

statement?

THE COURT : Sure .

MR ALLEN : Even

there

I have some issue

with

the

entirety of

the

comment. I don't mind i f he says -- the

entire comment reads, And don't

anybody

say

i t

i sn t

about

race because i t

is

. When I ask

the

cop specifically what

they look

like

and

his response is they

will stand

out

because they

don't

belong

here.

I

don't

have a problem

with

and

don't say i t

i sn t about

race

because i t

is

portion of

that, but then we get into hearsay of what an officer

allegedly said, and i t calls for speculation on the part

of

the

THE COURT: I can feel for you on that,

but I'm

going


7/142

7

to

le t

i t come

in because I want the entire social

2 interaction

to be

seen for what

i t is.

I think - - the

othe

r

3 thing is I think to

some

extent that could be handled -- i t s

4

very

difficult

to

craft

a

question

around

i t

for cross,

but

s le t s

see what happens. Okay .

6

MR

. AQUINO:

So

I m clear , I can read

her comment

7 during

my

opening statement?

8 THE COURT:

You

may .

9 MR AQUINO: Okay. Thank you.

10

(The

following proceedings

were had

in

open

court

,

In the presence and hearing of the jury.

2 THE COURT:

This

case

is State

versus Smith. Case

13 No .

12 CM 192.

I t is a trial in a misdemeanor matter. The

14

parties ,

as

I

indicated, are

the State

of

Wisconsin, and

15

we

l l

le t the

appearances

be

made at this time.

16 MR .

ALLEN: State

appears by ADA

Allen

.

17 MR

AQUINO: The

defendant appears

in

person and

by

18 his counsel

Thomas

Aqu i no .

19

THE COURT : Thank you , Counsel .

20 Ladies and Gentlemen, this is a

criminal case

, not a

2 civil case. The allegations are

contained

in

an

amended

22

complaint

. I will

read

those

. That the above-named

23

defendant

on

or about Saturday , July 21,

2012 in

the village

24 of Arena , Iowa County, Wisconsin

did

with intent to

25

in t i midate another person send a message to the

officers of


8/142

8

1

the

Arena

Police

Department on an

electronic

mail or other

2 computerized communication system and in that message used

3 profane language

contrary

to law. t

is also alleged

that

4

the

above-named

defendant did

on

that

same day

same

place

5

while

in the

village of Arena

Iowa

County Wisconsin engaged

6 in

indecent,

profane and boisterous conduct under

7

circumstances

in

which such conduct

tended

to cause a

8 disturbance, and that s contrary

to

law.

9

This

complaint language

that

I

just

read

to

you is a

10

written

formal

accusation

against

the

defendant charging

the

11

commission of one or more unlawful acts. You are not to

12 consider this

complaint

as evidence against the

defendant

in

13 any way and of course i t

shall not raise

any inference of

14

guilt .

15 Mr

Smith has

entered

a

plea

of not guilty to each

16 count in

the

complaint, which

means the

state must prove

17

every element in the offense charged beyond a reasonable

18 doubt.

I

will

now

introduce

to you Mr Allen and

Mr

Aquino

19

and Gentlemen

Mr Allen,

i f

you

would

please stand

and

20

introduce yourself to

the

panel.

21

MR ALLEN: Good

morning.

My name

is Matthew

Allen.

22

I m a

resident here in

Dodgeville and

serve

as

the assistant

23

district

attorney for Iowa County.

24 THE COURT:

Mr . Aquino.

25

MR

AQUINO: Well good morning.

My

name

is

Tom


9/142

9

1 Aquino.

I m

an

attorney,

and I

practice all through

the

2

area.

This

is

my

client

Mr. Smith.

3

THE

COURT: Introduce your

client,

please.

4

MR

AQUINO:

This

is

my

client

Thomas

Smith.

5 THE COURT: This is a criminal t r ial proceeding. The

6 next portion

of

the t r ial

will

be

the

selection

of

the

7 members of the jury. The procedure is called voir dire.

8 They are ancient language terms, v-o-i-r d-i-r-e, and every

9 attorney I know pronounces i t

differently.

I t s voir dire

10

would be one

of

the

ways

to

do

i t ,

but

we call i t

voir

dire,

11 and

i t s

the selection procedure whereby we determine which

12 12

of you will

be

seated

here

in

the jury box. The

matter

13 requested an answer, and

this

is a proceeding

that will

14

probably

take

most of

today.

I do

not

in any

way anticipate

15 that i t will

go

longer than

today.

We ll go now to the

16

selection

process,

and

I l l

ask

the

clerk

to please

1 7 administer the voir dire

oath

to the entire

panel .

18 Ladies and Gentlemen, stand please and raise your

19 right hand.

20 (Jury panel duly sworn.

21 THE COURT: Now this

selection process

i sn t

22 designed to get into your personal l i fe. I t s to

determine

23 who may be selected to hear this

particular case.

We have a

24

tumbler

here

that we

use for jury selection . You can see

i t

,

25 the whole thing in this process. Many courts today are using


10/142

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·

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computers. You put the name into the computer, and I guess

the

computer has

some

way of

scrambling

t and spitting

out

the names

to

be

called

to go into

the

box . We re

old fashioned.

This

is

Iowa County. We ll

le t

you

see

t

so

you now

how your name got called and

how

you got in the box.

If

you

would please.

THE CLERK: Do you want 14 or 12?

MR

ALLEN:

I think

we

can do

with

12 .

MR AQUINO: Agreed.

THE

CLERK:

Jay

Lindner.

Jacob

Peterson

. John

Winkers.

Julie

Roberts.

Leah

Houtakker . Calvin Williams .

Ryan

Rux .

He

is not here .

THE

COURT:

Mr.

Rux

are

you hear?

BAILIFF:

He

is

one that was not here.

THE CLERK: Elaine Schwartz. Gary Leonard.

Lanny

Stanfield.

Brandon Starr. Lonnie Johnson. Catherine Price.

Justin

Davis. William Schrader.

MR .

ALLEN:

I think

we

should have a voir

dire

panel

of

20

with

four strikes for each

MR

AQUINO:

Who was just

called?

THE CLERK:

William Schrader. Julie Gullickson.

Rosemary Mccrea.

Sheila

Buchholtz. Doreen Nichols. Mary

Nankee .

Brian

Miess .

THE

COURT:

I would

please

ask

the

name of

the

gentleman in the window.


11/142

MR

DAVIS:

Justin

Davis.

MR ALLEN

: The gentleman

in the

blue

shir t

.

MR SCHRADER: Mr Schrader .

11

1

2

3

4

MR

.

AQUINO

: I have one

question

.

Juror in the

green

5 shirt

.

MS .

HOUTAKKER:

Leah Houtakker.

7

THE

COURT:

Now

we

have

our 20

in

the panel. We

ll

8 proceed now to address

the selection

process i tself .

Vair

9

dire shall

be

reported,

and

we ll

have then four strikes

per

10

party

, and

the

prospective

jurors

,

including those of

you

11 seated here

beyond

the rai l , we ask please

pay

attention to

12 the entire proceedings. Some

of

the

prospective

jurors who

13 are seated

here

may be excused , and you

may

be selected to

14 come into

the box. If this occurs,

i f

you have listened to

15 the

questions

carefully

we will not have

to

repeat

the

16 separate

questions

to

you,

but

instead we ll be able

to ask

17

whether or not you have heard all

of

the questions and

1 8 whether

any

of

those

questions apply to

you.

As

I ask

my

19 questions i f

your answer

is

yes please

raise

your hand and

20 hold i t up until you are directed to put your hands down .

21 I t s necessary that the

attorneys

be given

an opportunity

to

22 make note

of

the jurors who

have responded

with

a yes answer

23 to

any of

the questions

.

My

questions

to you as

prospective

24 jurors wi l l

now

follow , and I remind you those of you

who

25 have

not

yet been called

into

the box please pay

atten

t ion so


12/142


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THE

COURT

: You could

hear the testimony

and vote

your conscience?

MR PETERSON: Yes.

THE

COURT:

Thank

you

1

sir.

The

gentleman

on

the

end Mr Lindner. Did you raise your hand?

MR

LINDNER

: Yes, sir .

THE COURT: Did your

contact

in any way affect your

ability to

be a

fair and

impartial

juror?

MR

LINDNER: No

1

i t will not.

THE

COURT:

Thank you,

sir .

Either attorney

may

follow-up

on

that.

Anybody

among

you who have had

contact with

13

Mr Aquino, the

attorney for

the

defendant?

I see

no

hands.

Are any

of

you

related by

blood

or marriage to

the

defendant? I see

no

hands .

Nowt I have

to

ask

this

question.

I t

doesn t

seem

rational

1 but i t s one of the questions that I have

to

ask.

Would

any

of

you in any

way

have any financial interest in

the outcome

of this case?

And I see

no

hands.

You have heard only briefly that i t s a misdemeanor

case. Would that in any

way

cause you

to say

well,

i f

he

is

accused

of

i t he must be

guilty?

Anybody who has that kind

of

a feeling?

Would any of

you

be aware of any kind of bias or

prejudice

that may attach? There will be

some

testimony


14/142


15/142

1 we do.

2 MR

SCHRADER:

My hearing is failing. My

wife

will

3

attest to

that.

4 THE

COURT:

We

have

that

in

common

15

5 MR

SCHRADER: She wants

me

to

get

a

hearing

aid, and

6 out of vanity I have not done

i t yet,

but I m going to have

7 to because i t s

progressing.

8

THE COURT: Have

you been able to

hear

what

we

have

9

said this

morning?

10

11

MR

SCHRADER:

In and

out

a

l i t t l e

bit.

THE COURT: Do

you

feel

that your

hearing

loss will

12

affect

your ability to l isten to the

t r ial i f

we put

you in

13

the

same chair

you are

at so

you

have

that proximity?

14 MR . SCHRADER : I t s going to be

difficult ,

but I

15 figure

i f

I have a problem I could always

ask.

1 6 THE COURT:

I think, Gentlemen, with your approval

17 I m going to simply summarily dismiss this juror. Thank you

18

for your candor . You can step down Thank you. Your

19

service is important and i t s complete .

20 MR SCHRADER: Thank you very much

21 THE

COURT:

Thank you for your disclosure. We ll

22 call

another

name to

take

the place

of

Mr Schrader.

23 THE

CLERK: Terry Anderson.

2 4 THE COURT: Would you have answered yes to any of the

25

questions that

have been put this morning?


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25

again.

hands.

MR

ANDERSON:

No.

THE

COURT: Please

take a seat .

THE

COURT:

I think I ve asked i t , but I l l ask i t

Are any

of

you

related

to

the

defendant here? No

Anybody

related to

Mr.

Allen? No hands.

Anybody

related to Mr. Aquino? No hands.

Do any

of

you have an ethical, religious

or

other

creed

that

says to

you I cannot si t in judgment

of

another

16

person? Anybody who

says

I just

can t

I m not a judge

of

other

people s

behaviors.

I

can t

do

i t ,

and I choose

not

to?

That s a perfectly

legitimate

response,

i f

i t is yours .

I don t

see

any hands.

Do

any

of you

have a cell phone in your pocket?

Please

be

sure that i t s turned

off, and

in

the course

of the

proceedings

-- i f you want to keep your cell phone and

i f

i t

goes off

you

may have difficulty with

that

. Please now not

in

any

way

during the course -- I don t want

to

look over

there

and

see

somebody texting and saying

I l l

be

home

at 2.

Seriously,

we can t have any

of you

using your cell phone

during the course

of

the

proceedings

.

That s

incoming and

outgoing. I have

to

trust you

on

that.

We re not going

to

have a cell phone policeman sitting

beside

each of you.

Please just be aware we re

quite

concerned about the

cell

phones, because in some

cases in

other

cities

people have

gone

into

the jury room and they get on the cell phone

or


17/142


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18

1 that

name?

Mr. Peterson

again

.

Mr

. Peterson,

again the

same

2

question. Does i t make any difference?

MR

. PETERSON: No.

4

THE

COURT:

Are any

of the

members

of

this

panel

5 related to a police officer?

We

have s i x hands. Now

is

6 that

- - does that

affect

your

ability

to

l isten

to the

7

testimony - - bottom l i ne here folks, i s this . We have

to

8 have a

jury that

has

no preconceived

notions

of

how

i t

ought

9

to come

out .

Do

any of you

by virtue

of your contact

with

a

10

police

officer

feel

that

i

a

police

officer

test ifies

i t

11 gets more weight than what someone

else

might have

to

say?

1 2

Anybody with that problem? I

see

no hands . Do any of

you

13 feel

that

your relationship with a

police officer in

any way

14

affects

your ability to

serve as

a juror?

No

hands . I asked

1 5 the same

question

a

different way

because we do want

to

be

16

sure .

Any of

you

and

is this a member

of

your own

immediate household?

MS .

ROBERTS

:

THE COURT:

MS . ROBERTS :

THE OURT :

MS . ROBERTS :

In one case i t is .

That s

Juror

Roberts.

Yes.

Would that be a husband or -

Yes .

17

18

1 9

20

21

22

23

THE OURT: Do any

of

you

feel

that

--

thank you

for

24 your observation . Do any of you have any

relations

in

25 emergency medical teams that brings you i nto

contact with

law


19/142

19

enforcement perhaps from

time to

time? Do you have in light

2 of your contact with law enforcement and with EMTs

again

in

3

any

way

could that be seen to

interrupt

your

ability

to be

4

fair?

No

hands.

Have

any

of

you

been a

police

officer?

No

5

hands.

6 I don t know that this would have had any

prior

7

pretrial

publication, but do any of you have any recognition

8 of this case

at

all? Any of you heard

anything

about i t? I

9 think

not

. No hands.

10

MR

ALLEN:

Can

we

approach

real

quickly?

11

(Sidebar.)

12

THE COURT: We

had a brief

conversation

about the

13

proceeding

in

the

voir dire and the question that is yet

to

14 be asked . Are any of you related

to

anybody else

on the

15 panel? Now

two hands .

Would that

in any

way

affect,

i

one

16 of

you

votes one

way

and

the

other the other way

just

because

17

you know him?

18

UNIDENTIFIED MALE JUROR: No .

19

THE COURT:

You feel you

can express your wishes no

20

matter what the other guy says?

21 UNIDENTIFIED MALE JUROR: Yes.

22

UNIDENTIFIED MALE JUROR: Yes.

23 THE COURT: I say i t in a

way

that s

designed not to

24

be

quite

so heavy.

This stuff gets

heavy sometimes and I

25

think

that we re here. This

is

going

to

be a good


20/142

experience. You are going

to

- - have any of

you

been on a

2 jury before? You have a sense of how t works and

--

put

3 your hands up high .

Does

your service, past

service as

a

4

juror

in

any

way

affect

your

ability

to

serve?

I

did

that

s once , and I

don t

want

to

go back there?

6 UNIDENTIFIED JUROR: No .

7

8

9

UNIDENTIFIED

JUROR: No

.

UNIDENTIFIED JUROR: No .

UNIDENTIFIED JUROR : No .

1 0

THE COURT

: I can

assure

you ,

that

many

more

jurors

20

after a

t r ial

have said , you know , I

didn t

want to be here .

2

I learned a lot. I m kind of glad I did t . I

trust

I

13 bel i eve

that

will be

available -- that feeling

may be

14 possible

for

each of

you when this s

over .

Did you

hav8 a

15 good

experience

or bad

experience?

16

UNIDENTIFIED

JUROR: (Indicates aff i rmatively . )

17

UNIDENTIFIED

JUROR: (Indicates affirmatively . )

UNIDENTIFIED JUROR :

(Indicates

affirmatively . )

UNIDENTIFIED JUROR: (Indicates affirmatively . )

THE

COURT: How

long ago was i t?

UNIDENTIFIED FEM LE JUROR :

Th

i rty-three

years

.

18

19

20

21

22

23

THE COURT: Well, the law hasn t changed a

bit

.

UNIDENTIFIED FEM LE JUROR : I

don

t

recall

. I would

24

say ten

years

maybe .

25 THE COURT :

You

know

you were there .


21/142

2 1

UNIDENTIFIED M LE

JUROR:

Mine was in 2000.

2

THE COURT:

It

was over ten

years ago.

3 MS. SCHWARTZ: And i t was on federal .

4

THE

COURT:

Okay. Thank you. Are any

of

you work

5 companions with

the

other? Any of

you

work

at the

same place

6 on the same crews? No one. The reason I ask that

is

i

we

7 have people

on

the jury who know somebody

else,

you

know

you

8 can

say

well, Janeen

voted

that way . I guess I kind of want

9

to

do the same thing.

If

she voted there

then

I want

to

be

1 0

friends,

so you can

see

what I m

getting

at

in

kind

of

a

11 shorthand way.

12 Have you or anyone close to you ever been accused of

13 breaking the

law?

Several

hands. That would be in a formal

14

accusation, not what your

neighbor said

. I

don t

want

to

15

embarrass

you

. That s

not

the point of

the

question . Do any

1 6 one of you

--

does any one of

you

feel I don t want

to

be

on

17 a jury because of that

past

brush with law?

You

have a right

18 to say

I

don t

want

to

do this. Being

on

a jury

is

one of

19 the

few remaining forms of

service that is

required of a

20 citizen . Once upon a

time

the ju r y were picked from select

21

men and

i t

was viewed upon as an honor in the community

to

22 be one of the jury panel members, and you

will

note in the

23 course of this after selection that

when you

enter the room

24

or

leave

the room we

all stand in recognition of

the

service

25

that you are giving.


22/142

22

For the last question of

voir dire

that I l l put to

2 you is there anyone who has any other reason at all for

3 choosing to not

serve

on this

jury?

No hands. Thank you

4

very

much

5 Mr Allen, for purposes of follow-up you may proceed

6 now with your voir

dire. You may follow-up,

but don t

go

7 over the same plowed ground.

8 MR ALLEN: A couple of additional preliminary

9

questions.

First, just to make

sure

everyone here is a

10

citizen

of

Iowa

County.

Anyone

who

is

not? I

believe the

judge touched on all

the witnesses.

I

wasn t

sure

i f

I heard

12

Nicholas Zimpel. Is anyone

related

to

Officer

Nicholas

13 Zimpel or know him

personally?

Anyone here who works third

14 shift

or

is taking medications or anything that might make

15 you drowsy or unable to follow today s proceedings? Ms

16

Schwartz

you

indicated

you

sat

on

a

federal

jury.

Was

that

17 a criminal or

civil

t r ial?

Do

you know

the difference

18 between

the

two?

19

MS

SCHWARTZ: I t was twice.

The

same period of

20 time. One was a criminal, and one was a civil .

21 MR ALLEN : Were

you the

foreperson for each

of those

22 t r ials?

23

MS SCHWARTZ: No .

24

MR

ALLEN:

Were

you able to reach

a

verdict in

each

25 of the cases?


23/142

2

MS SCHWARTZ: Yes.

MR ALLEN:

And

can you

tell me

a l i t t l bit about

3

the

experience for you? Was i t a favorable experience?

4

MS

SCHWARTZ:

Yes

i t

was.

5 MR

ALLEN:

On the civil case did

you

find for the

6 plaintiff who is seeking money damages or did you find for

7

the

defense?

8

MS

.

SCHWARTZ:

The

plaintiff

.

23

9 MR . ALLEN: And

on

the criminal

case

did you

return

a

1 0

verdict

of

guilty

or

not

guilty?

11

MS SCHWARTZ :

Not

guilty.

12 MR . ALLEN: And

do

you recall what kind of case that

13

14

was?

MS SCHWARTZ: I t

was

i t had to do with a young

1 5

man that was institutionalized and he said

his

counselor had

16

molested

him

.

17 MR . ALLEN : Anything else

you

want to

share

about

1 8

that

experience?

19 MS SCHWARTZ: No .

20 MR

ALLEN:

Thank

you

. Mr . Stanfield

you

have been

21 on a jury?

22 MR . STANFIELD :

Yes

.

23 MR .

ALLEN:

Can you recall whether that was a civil

24 or criminal case?

25 MR STANFIELD: I believe that was a civil case .

I t


24/142

24

1

was

in Dane County .

2 MR ALLEN: And so a car accident type

of

case

or

3

something along those

lines?

4

MR

STANFIELD:

I t

had

to

do

with

a

printing

press

5 whether

or

not i t

was

working well enough and

i f the

company

6

was liable.

7 MR ALLEN:

Breach

of

contract type of

thing?

MR

STANFIELD: Right.

9

MR

. ALLEN: Did you find for plaintiff who was

10

seeking

the

damages

or

the

defense, i f

you

recall?

11

MR

STANFIELD: I don t recall.

12

MR

. ALLEN : Ms Nichols, you stated you were on a

13 jury.

Were you -- what type

of

case was

i t?

14

MS NICHOLS: I t

was

federal

and three

civil

cases .

15

MR

ALLEN:

And

in the federal

case that

was a

16

criminal

action?

17

18

MS

NICHOLS

:

MR

ALLEN:

Money

Punitive .

And

in

those

cases

that

you sat on did

19

you

find for the plaintiff or for the

defense in those

cases,

20 i f you recall?

21 MS .

NICHOLS

: One was

for

the

plaintiff ,

and one was

22 for

the

defendant, and I l l

be

darned

i f

I can remember

the

23 third

one but I know there

was three.

24

MR ALLEN:

Did

you serve as the foreperson on that

25 jury?


25/142

2

MS NICHOLS: No

MR

ALLEN

: Anything

else

you care

to

share

about

3 that

experience?

4

5

MS

.

NICHOLS:

I

thought

i t

was

fun.

MR

.

ALLEN

: Good

to

hear. Mr Stanfield were you

6 the

foreperson

on your jury?

7

MR

STANFIELD: No

25

8 MR ALLEN

:

Ms

Nankee

you

were

on

a

jury as

well a

9 while back?

10

MS

NANKEE

:

Yes

.

1 1 MR ALLEN: What type of case was that?

·

1 2

MS NANKEE

: That was

similar

to this one .

1 3

MR

. ALLEN: And do you recall whether

the jury

in

14 that case

found

for --

found the

defendant guilty or not

15

16

17

18

guilty?

MS

NANKEE

:

MR ALLEN :

MS NANKEE

:

I

believe

he

was

guilty

.

And were you the

foreperson on that

jury?

No

19 MR ALLEN:

Anything about

that experience

that you

20 care

to

share other than what you already have?

21

MS NANKEE:

I t was

very

educational

.

22

MR

.

ALLEN

:

Appreciate that.

Anyone

else

who served

23 on

a jury? I think I covered

you

all .

24 Judge

Dyke

asked a l i t t l

bit

about if anyone had

25 been accused of a crime or known someone

who

had .

Has

anyone


26/142

26

1 here been

the

victim

of

a crime? Mr . Stanfield. And again,

2 I l l try not to pry too much unnecessarily,

but

trying to get

3

as

much

information

as we can to make sure we get the right

4

jury for

this

case.

Mr.

Stanfield

and

Ms.

Gullickson

.

5 Mr

. Stanfield, can

you

share a l i t t l e bit about

that, i f

you

are

comfortable?

7 MR

STANFIELD:

I just

when

I

was

walking

home

one

8 day and

got

sucker punched by somebody

who

followed me home.

9 Somebody I

didn t know.

10

MR

ALLEN:

Did

you

report

that

incident

to

law

11 enforcement at all?

12 MR STANFIELD: Yes, I did.

13

MR

.

ALLEN: And

were

you satisfied with the follow-up

14 investigation of the incident?

15 MR

STANFIELD: Yeah

. But

the

problem

was that

I

16

didn t

report

i t

until

a

couple of

days

afterwards,

so

that

17 was a mistake on my part.

18 MR ALLEN: Did any criminal charges end up being

19 brought

against

the person who

hit

you?

20

MR

STANFIELD:

No.

21

MR . ALLEN : Does that experience

color

in any way

22

your views

of

the

criminal

justice

system,

or

do

you

think i t

23

might impact

i t

at

all

how

you

decide today?

24

MR

STANFIELD:

No

I don t think.

25 MR ALLEN: How

long ago

was that?


27/142

2

3

4

MR . STANFIELD: t was

in

1996.

MR

ALLEN : A while ago?

MR

.

STANFIELD

: A while ago , yeah .

MR

.

ALLEN

:

Ms

.

Gullickson

, I

think

you

indicated

27

5

earl

i er that you had some prior contact with

me

as well. Can

6 you share with the panel what

that

contact

was?

7

MS .

GULLICKSON

: I

was attacked by my

neighbor s

8

three dogs , and you handled

the

case .

9 MR ALLEN: And

is that

also the part whe

r e you

10

answered yes

to

being a

victim of

a crime?

MS GULLICKSON: I m not

sure

i f

that

was a crime .

MR

ALLEN : A

victim of

some circumstances?

MS

GULLICKSON

: Right .

11

12

13

14

MR

. ALLEN : And did law enforcement i

nvestigate

that

15 incident?

16

MS

.

GULLICKSON:

Yes.

17

MR

ALLEN : Were you

satisfied with the

investigat i on

18

that they conducted?

19

MS

GULLICKSON

:

Yes

.

20 MR

.

ALLEN:

And is

there anything

about that

21 experience wi th law enforcement

or

with my

office

that would

22 any

way

affect you r

abili ty

to hear the facts

of

this case

23 and

decide

those impartially?

24

MS

GULLICKSON

:

No

25 MR

. ALLEN:

We

re

you satisfied

with

the

way the legal


28/142

28

process handled your

situation?

2 MS

.

GULLICKSON

: Yes and

no

.

3

MR

.

ALLEN:

Can you tell me

more

about that?

4

MS

.

GULLICKSON:

She

was

given

back one

of

her

dogs

5

and living right

next

to

her

I

didn t take

kindly

to that

.

6

MR ALLEN: Do you harbor any feelings of resentment

7

about that that might

play

into

this case?

8

MS

.

GULLICKSON:

Toward her, not you .

9 MR ALLEN : Anything else that

you

would care to

10

share

about

your

experiences?

12

MS GULLICKSON:

No

MR ALLEN:

Thank you.

Has

anyone here ever

13

witnessed a crime

or had

to

testify in court before as

a

14 witness?

Judge Dyke asked a

l i t t l

bit about relations

in

15

the

law enforcement area.

Does

anyone here have any

personal

16 experience in the legal field

either

as

a

legal secretary or

17 an

attorney or paralegal? Any

personal experience

of

that

18 nature? Anyone related to

anyone

who

is

an attorney or

a

19

paralegal or other legal

system participant? Ms . Gullickson?

20 MS

GULLICKSON: My

brother- i n-law is an

attorney

.

21 MR ALLEN: What type of law does he practice?

22 MS GULLICKSON: General law I guess. I don t know

23

what

you

call i t .

24

MR

ALLEN: And he has

not represented

anyone here

25 that

you

know of?


29/142


30/142

30

1

MR ALLEN: Anyone else have any recollection of

2 seeing

that story

in the news

or

picking

up any

information

3 about that

burglary?

Thank you.

4 Mr

.

Peterson,

you

had

talked

about

previous

contacts

5 earlier

with

Mr

. Smith and

Mr Stroik

and

Ms

Willey.

How do

you

know

Mr

Smith.

7 MR

PETERSON: I just know of him I guess.

8 MR ALLEN: He is someone

that you

see

frequently

or

9

infrequently?

10

MR

PETERSON:

I

would say

infrequently,

but

I

have

11

seen him.

12 MR

ALLEN:

Do

you

have phone or e-mail contact with

13 him or just when you

happen to

see

him

around town?

14

MR PETERSON: Just see

him

.

15

MR ALLEN: Would you consider him an acquaintance or

16 friend?

17 MR PETERSON: Acquaintance.

18

MR

ALLEN: And with

respect

to Ms

Willey, how

do

19 you know her?

20 MR

PETERSON: She is

my

cousin.

21

MR ALLEN: How often do you get together with

22 Ms Willey?

23

MR .

PETERSON

: I

don t know Once

every couple

24

months or so .

25 MR

.

ALLEN:

Family

events

Christmas?


31/142

31

MR

PETERSON

:

Yeah

.

2

MR . ALLEN:

Does

the fact that

you

know Mr . Smith and

3

Ms

. Willey would that do you think l i t t l e bit

put

a l i t t l e

4

more

weight

on

their

testimony as

opposed

to

testimony

of

the

5

officers?

6

MR

PETERSON:

t

might. I know Stroik

is

the

town

7 cop . I don t know much about the

case

.

8 MR ALLEN:

But your

personal interactions with

9 Mr . Smith and Ms Willey you think might

lead

you

to

come

1 0

into

this

putting

a

l i t t le

bit

more

weight

on

one

than

the

11 other?

12

MR

PETERSON: I don t know either side, so I don t

13 know

14

MR

. ALLEN : Do you think you might be better

f i t

for

15 a jury on a case where there is not people

directly

i nvo l ved

16 that you know?

17

MR

. PETERSON: Probably .

18 MR . ALLEN : Your Honor , I would ask that he be

19 excused for

cause?

20

MR

. AQUINO :

No

object i on .

21

THE

COURT :

Mr

. Pete r son , you

may

stand please and

22 return to the

audience

.

We ll select

another juro r

by

23 tumbler .

24

25

THE

CLERK

:

Kristen

Staszak .

THE COURT

:

Now

as you approach , would you have said


32/142

1 yes to answer any of the questions?

2

MS

. .

STASZAK:

I

know

of Officer

Stroik

because I m

3 from Arena.

4

5

7

8

9

10

THE COURT:

Does

i t

make

a

difference?

MS STASZAK:

No.

THE COURT: You are sure?

MS. STASZAK: I m sure.

THE

COURT:

You can be fair?

MS .

STASZAK:

Yes .

THE COURT:

You

can

be

seated,

please.

11 How

do

you speak your last name?

12

MS

STASZAK:

Staszak.

32

13 THE

COURT:

If I

may

depart from

the

seriousness for

14

a

moment

this

explains

part

of the process.

We had a

15 situation just

like

this when a

juror was

being excused and

16 we were drawing a name for a replacement, and I asked the

17 gentleman would you have said yes to any

of

the questions,

18 and he said yes, and I pursued i t and I said what is there

19 about

this that

causes you to be concerned about your

20 fairness . He said well, I know that witness

tha t s

going

to

21 be

testifying,

and I

wouldn t trust

him with anything

at all ,

22 so we had to send everybody home. That s why we re a

l i t t le

23 bit gun-shy

at times.

24 Mr. Allen, have you finished?

25 MR ALLEN: No

I have not . I apologize

i f

I m going


33/142

33

1 long . I t s one of those situations where I only get to ask

2 questions once, and I don t know if Mr . Aquino will ask

3 something that I feel is

important,

so

hopefully

I

will

cover

4

a

lot

of

ground and he

won

t have

too

much

but

he

is

5

entitled to

ask

questions too

, so I l l

get through

this as

quickly

as we can .

7 Who here knows how

to text

message? A fair number

of

8 you . Who has a

smart

phone? Again, a fa i r number

of

you .

9 If you don t text yourself how many of you have maybe seen

1 0

around

town

teenagers

walking

down

the

street

with

a phone

in

11

hand and thumbs going? A see lots

of

heads nodding.

Is

1 2 there

anyone here that

thinks

that text messaging

or

13

E-mailing

or social

media,

as i t s

described , i s not an

14

increasing

form of communication

today?

Everyone

agrees

that

15 i t s becoming more and more common

to

talk through the

16 computer phone. Buttons instead of call i ng someone

or

17

talking

to them in person . Who here knows what Facebook

is?

18 Lot

of

hands. Hard

not

to

these days with the

advent of the

19

Facebook movie and

social

media. Who here

personally

has a

20

Facebook

account?

I

don

t want

to

go through everyone here ,

21 but just

to

try to get

some

idea, Ms. Houtakker , how often

do

22 you check your

account?

23

MS.

HOUTAKKER :

Once

a month maybe .

24 MR ALLEN: Are those

who

raised your hand, is

that

25 how they use i t , check in occasionally ,

or

is there anyone


34/142


35/142

35

MS .

STASZAK

: What do you mean? Like can --

2

MR

ALLEN: Can a friend

of

yours send you a message

3 saying hi,

Ms

. Staszak . How

are

you doing?

4

MS

.

STASZAK

:

Yes

.

5

MR

. ALLEN : Do you post on other Facebook pages

6

accepting

messages l i

ke

that?

7 MS STASZAK: Sure .

8

MR . ALLEN : Is that generally

how other

people use

9 i t? Those

of

you who have Facebook accounts are

familiar

10

with

how

you

post

on

your page

or

you

can

comment on

someone

11 else s page? Has anyone here had something they posted on

12 line be removed

as

a post because the person whose page you

13 posted i t

on fe l t

that i t

was i nappropriate? Everyone

14 understand that s something that can be done? You can remove

15 a post from your own Facebook page? A lot

of

head nods. Has

16

anyone

here

ever removed something from your

own

Facebook

17 page that someone had

posted

because you fel t i t was

18 inapprop r iate? Mr Stanfield .

19 MR . STANFIELD : Yes.

20 MR ALLEN: Can you tel l me a

l i t t l

bit about that?

21 Was i t a language

thing?

22

MR . STANFIELD : I

think

i t

was

like a

23 religious/political thing that I didn t want

to

get

into

. A

24 lot

of

times I don t want to tell them about that stuff , so I

25 remove i t , and

some of

the messages I

don t

want that kind

of


36/142

36

1

stuff

put on my page.

2

MR

. ALLEN :

That s

something you can do as the

holder

3

of

your Facebook account?

4

MR

STANFIELD:

Right .

5 MR ALLEN : Anyone

else

have a similar experience to

6

Mr Stanfield? Ms

Gullickson, I

see

your head nodding .

7

MS

. GULLICKSON: I just didn t want i t on my page .

I t s similar to what he said .

9 THE

COUR

T: As you may have guessed from some of

the

10

questions

I have been

asking,

this

case

involves

Facebook

11

postings

. In particular i t involves

some

comments that

12 Mr . Smith posted on the

village

of

Arena Police Department s

13 Facebook page. As you learn of the facts i n this case there

1 4

might be

some objections

that the attorneys raise , and there

15 may be some things

that

you don t get to hear or see all of.

16 That s partly because i t s the rule of evi dence , and those

1 7 impact what we as attorneys can talk about and

show

you

in

18 the course of a case . Does everyone

understand

that there

19 may be some things that you might want to hear about but

20 can t?

Would

anyone have a problem with being

able to

decide

21

this particular case

only

on

the

facts that you do

get

to

22 hear and not speculating about what else might be

out there

23 or what you may have heard from someone else? Is everyone

24

okay

with

doing

that?

25

Mr . Lindner,

you said earl

i er that you had had

some


37/142

37

1 contacts with me . Can you

share

what

the nature of

those

2 contacts were?

MR. LINDNER: We played baseball together for the

4

Knights

four years

ago

maybe

.

5

MR. ALLEN

:

t

s been a

while.

Social

interaction

.

6 No contact through my professional office?

7 MR . LINDNER: No .

B MR. ALLEN:

Any

result

of

our interaction socially

9

those years

ago or seeing each

other

on the street would

that

1 0

in

any

way

impact your weight

or

mere

abili ty

to

decide

the

11

12

13

14

facts

of

this

case

as you heard them?

MR.

LINDNER: No.

MR . ALLEN: Now after this

case the

judge will

instruct you

on the laws

that

you are to

apply

in reaching

15 your decision based on

the

facts

that you

have heard . Is

16 there anyone

who

would have trouble following the laws and

1 7

convicting

the defendant i f the facts support i t simply

18 because the r e i s something about the law

that

you

disagree

19 with?

Is

there

anyone

who

might have trouble

finding

the

20 defendant gui l

ty

because you might be worried about what

21

would happen

to

him

if he is found guilty? f there is a

22 conviction the

judge

would be

in

charge

of

sentencing .

23

That s

not

a dec i

sion tha

t

you

would have

to

make .

Knowing

24

that

, is there any concern for what a potential convi

ct

i on

25 might mean for

the defendant that

would prevent you from


38/142

38

serving on this case?

2

After

you have heard the case and go through the

3 process

of

jury deliberation

where

you decide

whether

Mr

.

4

Smith

is

guilty

or

innocent of

the

charges

that

have been

5

brought against him,

that process

involves

the

12

jurors who

6 are empaneled discussing the facts and the law and

applying

7 those

facts

to

the

law . Is there anyone

here

who considers

8

themselves a

particularly

shy person or would have difficulty

9 voicing their

opinion

in

the course

of deliberations?

So

you

1 0

would

all

feel comfortable expressing

your

viewpoint

on

this

11 case then? On the flipside

does anyone

consider themselves

12 to

be

a fairly dominant per sonality and worry that you might

13 take

over

the

deliberations

to the

extent

that

other

voices

14 aren

' t heard? Anyone have

that

concern?

15 Has everyone heard the term beyond a reasonable doubt

16

whether

t

' s

CSI

or

Law

Order or

some

of

those

shows

on

V

17

these

days? It is the state ' s burden , my burden to prove

18 this case beyond a reasonable doubt on the charges

that

were

19

issued in

this

case .

Is there

anyone

here who

thinks

that

20

that

standard

i s

either

too

high

or too

low? That I would

21 have

to

prove

t

beyond any doubt or

that

I should have

to

prove

t by

a lower

standard?

Everyone

comfortable with

23

beyond a reasonable doubt standard?

24 Th

i s

is just

going

to

be a

series of

showing of hand

25

questions. In

the past

year

how many

of you have attended a


39/142

9

1

town meeting

or

public meeting? Three . How many have

you

2 written or

called

a

politician

at a local

state

or

national

3 level? Three .

Anyone

served on a committee in a local

4

organization

or

group?

One

hand .

Anyone an

officer

of

a

5 club or organization? Anyone written a le t ter to the

editor

or

call

a live broadcast expressing opinions?

One

. Anyone

7 made a

public

speech? Two . Has anyone here held

or

run

for

8 publ i c office?

9 MS . NICHOLS : I t wasn t a publ i c

office.

I

was

a

10

village clerk

.

11 MR . ALLEN : What

village?

12 MS NICHOLS: Ridgeway .

13 MR . ALLEN :

Has yo

ur experience

in

government as the

14

village

clerk

do

you

think

that would

affect

your view of the

15 criminal

justice

system or today s

proceedings?

16 MS . NICHOLS : No .

17

MR

ALLEN : Do

you think

you can hear the facts and

18

evidence

as

they

are presented

and make a

decision

based

on

19 that?

20

MS . NICHOLS : Oh yes .

21

MR

. ALLEN : Thank you Ms Nichols . I m nearly done .

22 Jurors have certain ri ghts and i t s important for you

to

23 exercise them when necessary. Fi rst of all , you have the

24

right

to

hear

all the testimony . I know I can sometimes be a

25

bit of a quiet talker talk too quickly . If I do

that

would


40/142

40

1 anyone have any problem interrupting and

tell ing

me

or

2 Mr. Aquino

or

whoever is speaking to slow down

or

speak

up

so

3

that

you can understand? You have

the

right to clearly

4

understand

the

law

and

know

that

the other

jurors

understand

5

i t

and are

applying i t correctly.

If

during deliberations

6

there is any

question

about the law that you don t understand

7 or

i f

there is disagreement among you about the law would you

8 all be

comfortable

asking the foreperson to knock on the door

9 and ask for

clarification of

the law? I can t promise you

10

that

you

will get

a

satisfactory

answer

to

whatever your

11 question might be. I want to make

sure

you are comfortable

12

asking

the question i f you feel

i t s

necessary.

13 I don t know that I have heard from everyone today

14 Is there anyone who I

haven t

spoken with today that has

15 something they feel would be

important

for me and Mr. Aquino

16 and the judge to know about your ability

or

background to

17

serve on this jury that might

be

important? Anyone want to

18 share something that

hasn t

been shared? Thank you for your

19 time.

I l l turn i t over to Mr. Aquino

20 MR

AQUINO:

All right. Thank you

As you

might

21 have guessed, Judge Dyke and Attorney Allen have covered most

22 of the questions

that I would

ask.

I

just

have a

few

23 follow-up

questions.

24

First,

just

so

you

know this

case is

going

to

25 involve some Facebook comments

that

include

what might be


41/142

41

1 considered offensive language, which I l l call right now . I t

2

will

include

the F

word

and the N word, and the comments are

not abbreviated or

used

in

that

shorthand,

so you

will hear

4

those

actual

comments, so

my

request

is

whether any

of

you

5 would

feel

so offended

by

hearing

those

comments

that

you

6 would be inclined to return a guilty verdict regardless

of

7

whether the facts

of

the case actually f i t the statutory

8

definition

of the

crimes? I see

no

hands. I l l move on.

9 Similarly,

the

comments

involve -- are highly crit ical you

10

would

say

of

police

officers

.

Similarly

when you

hear

the

11 is

there

anyone

here who

would be

inclined

to

find the

12 defendant guilty based on the fact that there are comments

13 that are critical of police officers regardless of whether or

1 4 not his words actually f i t the definitions

of

the

crimes

at

15 issue here? Seeing no hands I

ll

move on . Just briefly , I

16 wanted to follow-up with the jurors

who

i

ndicated

that they

17 have

some

kind

of

relationship with

members of the

law

18 enforcement community. First was Mr Li ndne

r.

Did you raise

19 your hand to that question?

20 MR LINDNER

: Yes.

21 MR

.

AQUINO:

Can you

describe

what your relationship

22

is?

23 MR . LINDNER : My f i rs t

cousin s

husband works for

the

24

Grant County Sheriff s Department .

25 MR

. AQUINO: Is he a

sheriff?


42/142

1

42

MR LINDNER: No

That s

how

much I know about

i t .

2 I

don t know

what

his

actual position

is with

the - - i t s not

3 the sheriff.

4

MR

AQUINO:

He

is

not a deputy?

5 MR LINDNER: He could

be a deputy.

t

could be a

6 detective. I have no idea.

7

8

9

10

MR

. AQUINO :

MR

LINDNER :

MR AQUINO :

MR

LINDNER:

He works in law enforcement capacity?

Yes

. I do

know that

.

How often

do

you socialize with

him?

Maybe

twice

a

year

. Christmas

Eve

and

11

summer

1 2

13

14

15

MR

AQUINO : And would that relationship affect your

ability

to

be fair?

MR

LINDNER :

No

.

MR AQUINO

: And

Ms

.

Roberts, you indicated

that your

16 husband is a police officer?

1 7

18

1 9

20

21

22

3

24

25

MS ROBERTS :

MR

AQUINO :

MS

ROBERTS :

MR

AQUINO :

MS

ROBERTS

:

MR

AQUINO :

MS ROBERTS :

MR

AQUINO :

testimony?

Correct .

What

office is

he?

City

of

Mineral Point .

How long has he been a police officer?

Close to 20 years.

What is

his

position?

Sergeant.

Do

you know i f he

has to ever give


43/142

2

3

MS ROBERTS: Yes .

MR

AQUINO: How frequently is he

giving

testimony?

MS ROBERTS: I

think

i t s been maybe three

or

four

4

or

five

years,

something

like that.

5

MR

. AQUINO: Since the last

time

he gave testimony?

6

MS

ROBERTS:

Yeah.

43

7 MR . AQUINO: Do you think on a subconscious level you

8 might be

more

apt to trust the

testimony

of a police officer

9 because

of

your relationship with your husband?

10

MS

ROBERTS: Possibly.

11

MR

AQUINO: Well, Your Honor,

in

light

of

her answer

12 I would move to strike

her for

cause.

13

14

MR

ALLEN:

THE COURT:

No objection,

Your Honor.

Ms Roberts, you

may

be

relieved of

your

15

service and return to the seat beyond the bar .

We thank

you

16 for

being here. We ll draw another

name

17

THE CLERK: Randal Doescher.

18 THE COURT: Good morning, s ir . Would you have

19

answered yes to any of the questions?

20 MR

DOESCHER: No

21 THE

COURT:

Very well, Mr Doescher. If you will be

22

seated, please,

and

this

is

the

time also to

also

remind the

23

jurors that a person who is a

convicted felon

shall not

serve

24 on a jury, and i f that distinguishes any

of

you

seated in

the

25

panel i f

you

would like

to

speak

to

the

court

we ll

take

time


44/142

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

to do that . I m assuming

MR . JOHNSON : I m on probation until July 12 .

THE COURT

: I

think I l l ask that you

step down . I

don t

want

to

cause

you

to

have

trouble

with your

own

circumstances, and thank you, sir, for your service .

THE CLERK: Mark

Lease.

THE

COURT:

Good morning , s ir .

MR LEASE: Good morning.

44

THE

COURT:

Mr.

Lease, would you have said yes

to

any

of the

questions

that

have been posed so

far?

MR . LEASE: Yes.

THE COURT:

You

would?

MR LEASE: Yes.

THE

COURT: Anything that

affects

your abili ty to

serve as a

juror?

MR . LEASE: No.

THE

COURT : What

was the

question

you

would have

answered yes to?

MR . LEASE: I t would have been the f i rs t one. Not

with

Mr . Allen directly but

with

the DA s office . I have had

contact with them .

THE

COURT: Does that in any

way cause

you to feel

that you

can t

l isten to

this

testimony

and be

fair

in your

vote?

MR LEASE: No.


45/142

45

TH

COURT

:

Please take

that seat ,

Mr

. Lease.

2 Gentlemen,

i you

want to follow-up with Mr Lease

you surely

3 may We re

in

your round , so you can proceed .

4

MR

.

AQUINO:

Thank

you

. Continuing

on

to

5

Ms

Houtakker, you

raised

your hand.

6

7

8

9

1 0

11

MS . HOUTAKKER:

My sister

is a police officer .

MR AQUINO: Where?

MS

HOUTAKKER : Oakland, California .

MR

AQUINO:

How long has she been a police off i cer?

MS

HOUTAKKER

: Almost

15

years

.

MR AQUINO: Would your relationship with your sister

12

affect your abil i ty to weigh the evidence in this

case?

13

14

15 middle .

16

17

18

19

20

21

MS . HOUTAKKER : No

MR AQUINO : The man in the s t r ipes there i n the

MR

.

DOESCHER

:

Randy

Doescher .

MR AQUINO

:

In f r ont of you.

MR .

STARR:

Me

MR

AQUINO: What s

your

name?

MR .

STARR:

Brandon Starr .

MR . AQUINO : You indicated

you

have a r e l t i o n s h

22

with someone

in

the law enforcement community?

MR

STARR :

My cousin

3

24

MR . AQUINO : How long has she

or

he been a member

of

25 the police?


46/142

46

MR . STARR : Six years

2

MR

AQUINO : What office?

3 MR STARR: She has been

with

Ridgeway Arena and

4

Barneveld.

5 MR AQUINO: She has been with Arena?

6 MR . STARR: Yes .

7 MR AQUINO : When was that?

8

MR

STARR: Probably five

years

ago .

9

MR

AQUINO : Do

you

ever speak with her about anyone

1 0

in

the

Arena

Police

Department

or

about

her

work

at

the

Arena

11 Police

Department?

12

13

14

15

1 6

MR STARR:

about

for

Zimpel.

MR AQUINO:

MR

STARR:

. AQUINO :

I know she trained she said something

She trained him when he was in Barneveld .

She trained him?

Yes

.

Would that affect your ability on any

17 level to judge

in

this case?

18 MR STARR:

No

.

19 MR AQUINO : Ms . Nichols?

20

MS

NANKEE:

Mrs Nankee.

21 MR . AQUINO : Yes

Nankee

.

Did

you indicate

you

had a

22 relationship?

23 MS .

NANKEE:

Yes . My son.

24 MR AQUINO:

And

where is he an officer?

25 MS NANKEE

: In Evansville


47/142

1

2

3

4

5

affect

.

MS .

MR

your

MS .

AQUINO:

NANKEE :

AQUINO :

abili ty

NANKEE :

How

long has he been a police

officer?

About eight years .

Does

your

relationship

with your son

to

I

don t

believe so . I have four sons,

6 so suffice t to say that I m on both

sides

.

47

7

MR

. AQUINO : Is this your oldest son or youngest son

8

that s

the police

officer?

9

1 0

MS

. NANKEE : Eldest .

MR

AQUINO:

Is there

anyone

else who

has a

11

relationship

with

a police

off

i cer that I didn t ask that

12

question to?

Okay .

13

14

ie e

.

15

1 6

17

UNIDENTIFIED

MALE: The same as

Brandon s

here

.

MR . AQUINO : She i s your niece?

UNIDENTIFIED MALE

:

Yes

.

MR

AQUINO:

Would that affect your ability to

judge

18

in

this case?

19

20

21

UNIDENTIFIED

MALE:

No

MR AQUINO : Those are

all

my

questions

, Your Honor.

THE

COURT:

Mr Allen, as to

the

newcomers to

the

22

panel,

do

you

have any

follow-up you

need

to

do?

23

24

MR ALLEN: No .

THE

COURT:

We ll proceed

now

to the selection

25

process. We ll have

bailiff,

please

, to hand the l s t here


48/142

48

back and forth beginning with

the state.

2 (Short pause . )

3

TH COURT: We ll give this now to the clerk to call

4

the

names

of

those

who

have been

selected

.

If

your

name

i s

5 not read then you may please return to the area

of

the bar .

6 If

you

would

please, the names

.

7

TH

CLERK : Leah Schroeder , Calvin Williams, Elaine

8 Schwartz, Lanny Stanfield, Brandon

Starr

, Catherine

Price

,

9

Justin Davis, Julie

Gullickson

, Rosemary Mccrea ,

Sheila

10

Buchholtz , Doreen Nichols and Randal Doescher.

11 THE COURT: Bai l

i

, would you, please?

12

BAILIFF

: There is a

question

about whether you

13 cal

l ed their name

or

not i they are to go and si t down .

1 4 THE

COURT:

If the

name

was read then they have been

15 selected . If your name was not read then you may s i t down .

16 If you would please, bail i ff ,

please

seat them and add two to

17 the back row and add the balance here i n the front row .

18 Let s

call

the row . Ms Gullickson there

in

the back

row

and

19

Ms

. Mccrea , Mr Doescher , Houtakker , Williams, and on the end

20 Mr Davis. Then

in the front row

Ms . Nichols, and Ms .

2 1 Nankee.

22

MS . PRICE:

Price

.

23

TH

COURT:

Buchholtz, Starr and Stanfield and

24 Schwartz . Thank you . I would ask you please to return to

25

those

seats after the break.


49/142

49

Mr.

Allen,

do

you accept this

jury?

MR

.

ALLEN:

I

do,

Your Honor.

THE COURT:

Mr

.

Aquino ,

do

you accept this jury?

MR

AQUINO:

Yes,

we

do

.

THE COURT: We ll

ask the

jurors

who

are here in

the

2

3

4

5

6

7

8

box please rise and

our clerk will

administer

the

oath

.

(Jury panel duly sworn . )

THE COURT: Please

be seated.

Now I

think,

Counsel ,

9 we ll take

a brief recess and I come back

and provide some

10

preliminary

instruction

and

we ll

get

to

the

testimony

. All

11

right.

MR

.

ALLEN:

Good

. Thank you .

2

1 3 THE COURT : Those

of

you

on the bar

, again ,

thank

you

14 for your service this morning. Obviously we have a jury

1 5

that s been

selected

and we ll proceed with that .

You

are

16 excused , so you are very welcome to

stay,

but you are free to

17 go . If anybody need verification we ll get that for you

in

18

the clerk s

office.

1 9 (The following

proceedings

were held

in

open

court

,

2 0

Out

of the

presence

and hearing

of

the jury.)

21 THE

COURT: We re going on the record. Mr. Rossing

22 spoke to one

of

the

jurors

who approached him

in

the hall

23

during a

break,

and

the juror, as

I

understand i t and we

24 have the

bailiff here

to speak to this , that he has anxiety

25 concerns , so we ll reseat him .

He

also said that he has some


50/142

50

urinary difficulties,

and

we ll reseat him closer to the

2 door. I

will

speak

to the

entire jury about taking breaks

3 and i they have a need for use of

the restroom

raise

their

4 hand and be

recognized

in

some

manner and

they

will

be

--

5 we ll simply

take

a break

to

allow the

juror to

meet his need

6 or her needs. I understand that the defense counsel

here

7 heard part of that conversation with Mr . Rossing and also

8 that our reporter heard part of that conversation and sought

9 to

assist Mr

Aquino

in his

concern or also to

assist

the

1 0

juror

in his

concern

. I fel t

i t

was

appropriate

for

us

to

go

11 on

the

record to

speak

to this.

Mr

Aquino do you have any

12 questions at all about this?

13

MR

AQUINO: Yes Your Honor. I

think i t

would be

14 appropriate that I be

able

to ask

some

questions of

15

Mr

Doescher to

make sure

that he is able to actually

1 6 participate

in

the deliberation process .

17 THE

COURT:

Do you want a

mistrial

on

the balance or

18

go

for

11 as a

jury?

19

MR AQUINO: Well

that s

something I would have to

20

discuss

with my client

what he would like to do i

we think

21 that there is cause

to strike

him

for

his inability to

22 participate.

23 THE COURT:

Sure. These

things

happen . The

i rs t

24

step is

I would l ike

to

understand exactly what the nature of

25 his infirmity is and whether that

will

affect his abili ty to


51/142

5 1

1 participate.

We ll bring him

i nto chambers ,

although

there

2

is some

concern about

conducting discussions

such

as

this out

3 of the

presence

of the

jury. I l l

defer to counsel.

Should

4

this

be done

as

a group,

or

is

this

something

that

can be

5 successfully appropriately dealt with

in

chambers?

We

had

some

cases

that

say

don t you

go into the

chamber.

7 MR . ALLEN : I

share

that

concern , Judge. I t might be

B appropriate

to raise the

issue

i n

front of the

entire panel

9 as

well just so

that i f

anyone else is

feeling

s i

milar

10

anxiety

that

they

can

voice

their

concerns about

i t

too

.

11 MR . AQUINO : I agree. I think

i t

should be done in

12

front of

the entire panel.

13 THE COURT: Do you want to talk to your client , a

14 couple

of

minutes to talk to your

client

about what s going

1 5

on?

16

MR

. AQUINO :

He knows

what s goi ng on . I

think

~

1 7 can

go

back in. I will need only time to

discuss

with my

18

client

what he wants to do, but I

think

we can begin with the

19 voir dire.

2 THE

COURT:

Okay.

21 (The following

proceedings

were had

in

open

court

22 in the presence

and hearing

of the

jury . )

23 THE OURT : During the break the bail i ff was

24

contacted

by a juror with concerns about

attending

to

25 personal matters

and

the

concern about breaks

for

restroom

Documents

State of Wisconsin v. Thomas G. Smith