state of wisconsin v. thomas g. smith
TRANSCRIPT
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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
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(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 .
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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
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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
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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
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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
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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.
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MR
DAVIS:
Justin
Davis.
MR ALLEN
: The gentleman
in the
blue
shir t
.
MR SCHRADER: Mr Schrader .
11
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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
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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
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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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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
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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
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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
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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 .
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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.
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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?
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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
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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?
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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
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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?
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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
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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?
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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?
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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
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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
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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
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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
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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
-
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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
-
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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
-
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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
-
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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
-
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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?
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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
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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
-
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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.
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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?
-
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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
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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
-
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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.
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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
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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
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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
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8/15/2019 State of Wisconsin v. Thomas G. Smith