SUBMITTED ON BRIEFS ORAL ARGUMENT: November 9, 2016
Court La Crosse County, L.C. No. 2012CF691, Ramona A.
of a decision of the Court of Appeals. Affirmed.
the defendant-appellant-petitioner, there was a brief by
Steven W. Zaleski, and Zaleski Law Firm, Madison, and oral
argument by Steven W. Zaleski.
the plaintiff-respondent the cause was argued by Sara Lynn
Shaeffer, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
JUSTICES: CONCURRED: ABRAHAMSON, J., joined by BRADLEY, A.
W., J. (except for the first sentence of ¶90) concur
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an unpublished decision of the court of
appeals, State v. Lepsch, No.
2014AP2813-CR, unpublished slip op. (Wis. Ct. App. Nov. 19,
2015) (per curiam), which affirmed the La Crosse County
circuit court's judgment of conviction of defendant
Jeffrey Lepsch ("Lepsch") and order denying
Lepsch's motion for postconviction relief.
A jury found Lepsch guilty of killing two individuals during
an armed robbery in La Crosse, Wisconsin. Lepsch was
sentenced to consecutive life terms in prison. Before this
court, Lepsch argues he is entitled to a new trial due to
alleged errors pertaining to jury selection and the jury
More specifically, Lepsch presents the following arguments:
(1) Lepsch's right to a trial by an impartial jury was
violated because certain of the jurors in his case were
subjectively and objectively biased; (2) Lepsch's right
to due process of law was violated because of circumstances
that created the likelihood or appearance of bias and because
of alleged deficiencies in the circuit court's
investigation into and mitigation of these circumstances; (3)
Lepsch's right to be present at a critical stage of his
proceedings, right to a public trial, and right to a jury
properly sworn to be impartial were violated because the La
Crosse County Clerk of Courts administered the oath to the
prospective jurors in Lepsch's case outside of
Lepsch's presence; and (4) Lepsch's right to receive the
proper number of peremptory strikes, to full use of those
strikes, and to have biased jurors removed for cause was
violated by the circuit court. Lepsch explains that "all
of the issues litigated in this appeal have been raised via a
claim of ineffective assistance of
We conclude that each of Lepsch's claims fails, and that
he is not entitled to a new trial. Consequently, we affirm
the decision of the court of appeals. '
FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2012, police were dispatched to a store in
La Crosse, WI. The bodies of P.P. and A.P had been discovered
by a family member at the store; each had been shot in the
head. There were also signs of a robbery.
On October 10, 2012, Lepsch was charged with two counts of
first-degree intentional homicide, contrary to Wis.Stat.
§ 940.01(1)(a). The following day, an amended complaint
was filed additionally charging Lepsch with armed robbery
with use of force, contrary to Wis.Stat. § 943.32(1)(a)
and (2), and possession of a firearm by a felon, contrary to
941.29(2)(a). On October 25, 2012, at Lepsch's
arraignment, Lepsch stood mute and the circuit court entered
pleas of not guilty on his behalf. A few months later, the
case was set for a jury trial.
Jury selection in this case proceeded as follows. Prior to
the date of jury selection, prospective jurors completed
paper questionnaires asking dozens of questions on subjects
ranging from the jurors' favorite television shows to the
jurors' views on various legal propositions. These
questionnaires required a signature under the following
statement: "I affirm, under penalty of perjury, that I
have given complete and honest answers to all of the
questions above." The parties agreed to excuse about two
dozen prospective jurors at least in part on the basis of the
answers provided. On July 23, 2013, jury selection itself
occurred. Prospective jurors gathered in the "jury
assembly room, " where they were sworn by the La Crosse
County Clerk of Courts. The parties seem to agree that
neither Lepsch nor his attorneys were present when the oath
Certain prospective jurors were then brought into the
courtroom for individual questioning in the presence of the
court, Lepsch, and his attorneys. A number of prospective
jurors were excused. Next, remaining prospective jurors were
brought into the courtroom as a group and questioned in the
presence of the court, Lepsch, and his attorneys. Finally,
Lepsch and the State were each given six peremptory strikes
and a panel of 15 jurors was selected.
From Wednesday, July 24, 2013, to Friday, July 26, 2013, and
from Monday, July 29, 2013, to Tuesday, July 30, 2013, Lepsch
was tried before the jury. There is no dispute that this jury
was properly sworn by a clerk in Lepsch's presence in
court at the start of his trial. On July 30, 2013, the jury
returned a verdict of guilty as to all counts charged. On
September 3, 2013, the circuit court sentenced Lepsch to two
life sentences without extended supervision for the homicide
charges, a 40-year term of imprisonment for the armed robbery
charge, and a 10-year term of imprisonment for the possession
of a firearm by a felon charge, all to be served
consecutively. On September 4, 2013, the judgment of
conviction was entered.
On November 25, 2013, Lepsch filed a notice of intent to seek
postconviction relief, and on July 15, 2014, Lepsch filed a
postconviction motion for a new trial. In his motion he
challenged the convictions asserting that he received
ineffective assistance of counsel. On September 4, 2014, the
circuit court held a Machner hearing on Lepsch's
motion. See State v. Machner, 92 Wis.2d 797, 285
N.W.2d 905 (Ct. App. 1979). On November 14, 2014, the circuit
court denied Lepsch's motion.
On December 2, 2014, Lepsch filed a notice of appeal. On
November 19, 2015, the court of appeals affirmed the circuit
court's judgment of conviction and order denying
postconviction relief in an unpublished, per curiam opinion.
Lepsch, unpublished slip op., ¶1.
On December 4, 2015, Lepsch filed a petition for review in
this court. On May 11, 2016, this court granted the petition.
STANDARD OF REVIEW
"A claim of ineffective assistance of counsel is a mixed
question of fact and law." State v.
Ortiz-Mondragon, 2015 WI 73, ¶30, 364 Wis.2d 1, 866
N.W.2d 717 (quoting State v. Carter, 2010 WI 40,
¶19, 324 Wis.2d 640, 782 N.W.2d 695). We review the
circuit court's findings of fact under a clearly
erroneous standard, but independently determine the legal
question of whether counsel's assistance was ineffective.
Id. (quoting Carter, 324 Wis.2d 640, ¶19).
We "review constitutional questions, both state and
federal, de novo." State v. Lagrone, 2016 WI 26,
¶18, 368 Wis.2d 1, 878 N.W.2d 636 (quoting State v.
Schaefer, 2008 WI 25, ¶17, 308 Wis.2d 279, 746
Other applicable standards will be discussed below.
Lepsch's appeal focuses on his ineffective assistance of
counsel claim. Lepsch possesses state and federal
constitutional rights to the effective assistance of counsel.
U.S. Const. amends. VI, XIV; Wis. Const. art. I, §
Strickland v. Washington, 466 U.S. 668, 686 (1984);
State v. Starks, 2013 WI 69, ¶54, 349 Wis.2d
274, 833 N.W.2d 146. "The standard for determining
whether counsel's assistance is effective under the
Wisconsin Constitution is identical to that under the federal
Constitution." State v. Thiel, 2003 WI 111,
¶18 n.7, 264 Wis.2d 571, 665 N.W.2d 305. "First,
the defendant must prove that counsel's performance was
deficient. Second, if counsel's performance was
deficient, the defendant must prove that the deficiency
prejudiced the defense." Carter, 324 Wis.2d
640, ¶21 (citation omitted). With regard to the first
part of this test, "[c]ounsel's conduct is
constitutionally deficient if it falls below an objective
standard of reasonableness." Thiel, 264 Wis.2d
571, ¶19 (citing Strickland, 466 U.S. at 688).
With regard to the second part of this test, "the
defendant must show that 'there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.'"
Id., ¶20 (quoting Strickland, 466 U.S. at 694).
In Lepsch's first ineffective assistance of counsel
claim, Lepsch argues his attorneys were ineffective in
failing to raise jury bias issues during jury selection. As a
result, he claims nine of the jurors in his case were biased,
which denied him his right to an impartial jury under the
Wisconsin and federal constitutions. Lepsch bases this
challenge on various answers given in response to four
questions on the pre-trial questionnaires completed by the
prospective jurors. He argues that his attorneys were
ineffective for "failing to sufficiently examine and
challenge prospective jurors for cause."
We now present the four questions at issue. Question 30 of
the questionnaire reads as follows: "You will be hearing
testimony from several police officers in this case. Do you
think you would give police officers more credibility, less
credibility or the same amount of credibility as other
witnesses who were not police officers?" The question
contained spaces for the prospective juror to check
"more credibility, " "less credibility, "
or "the same credibility, " and asked the
prospective juror to explain his or her answer. Seven of the
twelve jurors who sat on Lepsch's case answered
Question 35 of the questionnaire contained the following
questions, among others: (1) "Have you ever expressed
the opinion that Mr. Lepsch was guilty?"; (2) "Do
you have any feelings at this time that you have made up your
mind as to Mr. Lepsch's guilt?"; and (3) "IF
YES, would you have any difficulty putting these feelings out
of your mind if you were chosen to be a juror?". Each
question was followed by spaces for the prospective juror to
check "Yes" or "No." Four of the twelve
jurors on Lepsch's jury answered that they had expressed
the opinion that Mr. Lepsch was guilty. Three of these
same four jurors answered that they "ha[d] . . .
feelings" that they had made up their mind as to
Lepsch's guilt. Each of these three then answered that
they would not have any difficulty putting the feelings out
of their mind if they were chosen to be a juror.
Question 32 asked, "Do you have any problem with the
legal proposition that a defendant must be presumed innocent
unless and until the prosecution can prove he or she is
guilty?" And Question 34 asked a related question:
"Do you think if the state goes to the trouble of
bringing someone to trial, the person is probably
guilty?" Both questions left spaces for the prospective
juror to check "Yes" or "No, " and both
questions asked for the prospective juror to explain his or
her answer. One juror answered "No" to Question 32
(regarding the presumption of innocence) but then explained
his answer as follows: "In general, no. But I do not
believe that this should be the case 100% of the time. I
believe that there are cases in which there is immediate
& overwhelming evidence (i.e. physical evidence,
audio/video evidence, confessions, etc.) should be presumed
guilty until trial [sic]." The same juror answered
Question 34 (relating to whether a person brought to trial is
probably guilty) as follows: "Probably? Yes. Definitely?
Not necessarily. I would hope that the courts would not bring
someone in just so they have someone to try. I would hope
there would at least be a fair amount of evidence or cause
before bringing someone in."
Before addressing the deficiency and prejudice prongs of
Lepsch's ineffective assistance of counsel claim, we set
forth the law governing juror bias. "The United States
Constitution and Wisconsin's Constitution guarantee an
accused an impartial jury." State v. Mendoza, 227 Wis.2d
838, 847, 596 N.W.2d 736 (1999) (citing U.S. Const. amends.
VI and XIV; Wis. Const., art. I, § 7). "To be
impartial, a juror must be indifferent and capable of basing
his or her verdict upon the evidence developed at
trial." State v. Faucher, 227 Wis.2d 700, 715,
596 N.W.2d 770');">596 N.W.2d 770 (1999) (citing Irvin v. Dowd, 366
U.S. 717, 722 (1961)).
"Reviewing courts are properly resistant to
second-guessing the trial judge's estimation of a
juror's impartiality, for that judge's appraisal is
ordinarily influenced by a host of factors impossible to
capture fully in the record--among them, the prospective
juror's inflection, sincerity, demeanor, candor, body
language, and apprehension of duty." Skilling v.
United States, 561 U.S. 358, 386 (2010).
"Prospective jurors are presumed impartial" and
Lepsch "bears the burden of rebutting this presumption
and proving bias." State v. Funk, 2011 WI 62,
¶31, 335 Wis.2d 369, 799 N.W.2d 421 (quoting State
v. Louis, 156 Wis.2d 470');">156 Wis.2d 470, 478, 457 N.W.2d 484');">457 N.W.2d 484');">457 N.W.2d 484');">457 N.W.2d 484 (1990)).
"We have recognized three types of bias: (1) statutory
bias; (2) subjective bias; and (3) objective bias."
State v. Smith, 2006 WI 74, ¶19, 291 Wis.2d
569, 716 N.W.2d 482 (citing Faucher, 227 Wis.2d at
716). Lepsch argues that the jurors he challenged were
subjectively and objectively biased.
Subjective bias refers to "bias that is revealed through
the words and the demeanor of the prospective juror."
Faucher, 227 Wis.2d at 717. "[T]he circuit
court sits in a superior position to assess the demeanor and
disposition of prospective jurors, and thus, whether they are
subjectively biased." Id. at 718. Accordingly,
"we will uphold the circuit court's factual finding
that a prospective juror is or is not subjectively biased
unless it is clearly erroneous." Id.
The concept of objective bias relates to the question of
"whether [a] reasonable person in the individual
prospective juror's position could be impartial."
Objective bias . . . is a mixed question of fact and law.
"[A] circuit court's findings regarding the facts
and circumstances surrounding voir dire and the case
will be upheld unless they are clearly erroneous. Whether
those facts fulfill the legal standard of objective bias is a
question of law." Although we do not defer to a circuit
court's decision on a question of law, where the factual
and legal determinations are intertwined as they are in
determining objective bias, we give weight to the circuit
court's legal conclusion. We have said that we will
reverse a circuit court's determination in regard to
objective bias "only if as a matter of law a reasonable
judge could not have reached such a conclusion."
Funk, 335 Wis.2d 369, ¶30 (citations omitted)
(quoting Faucher, 227 Wis.2d at 720-21).
In order to succeed on his ineffective assistance of counsel
claim, Lepsch must prove that his attorneys acted deficiently
during jury selection and that he was prejudiced by this
performance. Our review demonstrates that none of the jurors
who sat on Lepsch's case were biased, either subjectively
or objectively, and that Lepsch was therefore not prejudiced
by the performance of his attorneys, even if the performance
was deficient in some respect (a question we need not
The circuit court below explained, in denying Lepsch's
From the court's position of being able to best determine
juror bias, the court is absolutely convinced that each juror
was able to put any potential biases out of their minds. The
court is absolutely certain that Lepsch was tried by a fair
and impartial jury who decided the case based solely on the
evidence before them. The court is unequivocally convinced
that the jury agonized over its decision and gave Lepsch
every benefit of the doubt.
Lepsch cannot establish ineffective assistance because he
cannot prove either objective or subjective bias. Seven of
Lepsch's jurors stated in the questionnaire that they
would give police officers more credibility than witnesses
who were not police officers. Five of these jurors, however,
were specifically questioned on that answer, and the lawyers
and/or the court examined this belief and ensured that the
jurors could decide the case impartially. To take just one
example,  the court asked R.F. the following with
regard to law enforcement officers:
[T]he question is, once they are sitting in the seat
you're sitting in and they are a witness, can you judge
them, the credibility, what they say based upon those things
that we as human beings use as intangibles to determine
people's credibility and not just cut them slack because
they happen to be law enforcement?
R.F. responded, "Yes, Your Honor." The
court then confirmed, "So you can -- you can look at
them as you would any other witness?" R.F. responded,
"Yes." Given our deference to the circuit court on
these types of questions, we will not displace the circuit
court's conclusion that these jurors were not biased when
they sat on Lepsch's case.
J.A. and D.M. are the two jurors who were not specifically
questioned on this point. However, other aspects of the jury
selection process provide support for the circuit court's
rejection of Lepsch's claims of bias. Both J.A. and D.M.
checked "No" on their questionnaires next to the
question, "Is there any reason why you could not be
impartial in this case?" And D.M. stated elsewhere on
his questionnaire, "I believe in facts, not
people." See, e.g., Griffin v. Bell, 694 F.3d
817, 823-24) (7th Cir. 2012) ("[Juror] Carel, of course,
never said that she could not be fair. At most, she indicated
that her first inclination, if faced with conflicting stories
from a police officer and a fourteen-year-old boy, would
'most likely' be to believe the officer. . . . In
this case, although [juror] Carel expressed an initial
inclination that police officers are more credible than
teenagers, she never expressed an irrational or unshakeable
bias that indicated an inability or unwillingness to
faithfully and impartially apply the law."); United
States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998)
("In the abstract, it is certainly not unreasonable for
an ordinary person to say she would generally tend to believe
a prison guard over a prison inmate. But that certainly
doesn't mean that in a given case, after hearing sworn
testimony under oath and considering all the facts and
circumstances, that that same juror would automatically
believe a given guard over a given inmate. Generalized
questions of the sort asked here are a slim basis upon which
to base a challenge for cause.").
Further, both J.A. and D.M. were present during questioning
of the jurors as a group. Given the general tenor of voir
dire, the prospective jurors could not have "fail[ed] to
recognize that bias in favor of law enforcement officials was
inappropriate." United States v. Lancaster, 96
F.3d 734, 742-43 (4th Cir. 1996) (reaching this conclusion in
part because the court had inquired about "bias in favor
of law enforcement officials resulting from a relationship
with a relative or friend in law enforcement"). The
defense informed the prospective jurors, "[T]here's
no wrong answers, and I want you guys to talk to me.
We're after an unbiased jury here, and it's okay to
have biases. We all have them." Topics touched on during
questioning by the defense were whether the police can make
mistakes, whether it is important that law enforcement follow
procedures, whether police "ever let bias get in the way
of what they're looking for, " whether "we tend
to trust professionals [including police] a little more than
we should sometimes, " and how to determine whether a
professional such as a policeman "has the right training
Moreover, earlier in voir dire, the State explained to the
prospective jurors, "both sides want people who are
fair, objective, " later adding:
[B]y now you've gotten some pretty good ideas through the
questionnaires and all the questioning of the kind of things
we want to know about people. Is there anything that anybody
hasn't asked and you've just been sitting here
waiting, why don't they ask me this because I really
shouldn't be on this jury, but nobody's asked me why?
Is there anything that we haven't asked at this point,
anyone who says, I should not be here; I can't be fair;
and we just haven't asked the right question yet?
was no response. See Lancaster, 96 F.3d at 743
("Under these circumstances, the district court's
final voir dire question--'Ladies and Gentlemen, do you
know of any reason, is there anything at
all any of you know of that would make it difficult for
you to sit as an impartial juror in this case?'-- could
not have failed to elicit an affirmative response from any
member of the venire harboring a bias in favor of law
enforcement officials." (citation omitted)). Again,
given the standard of review, we are not in a position to
disturb the circuit court's judgment that no bias existed
on Lepsch's jury in this regard. Thus, even assuming
Lepsch's attorneys should have examined this matter
further during jury selection in some way, Lepsch has not
proven that he was prejudiced by the performance.
Lepsch's claims of bias regarding jurors who said they
had expressed an opinion on Lepsch's guilt or had made up
their mind as to Lepsch's guilt are also unpersuasive.
Each of the three jurors who stated "Yes" on their
questionnaires when asked, "Do you have any feelings at
this time that you have made up your mind as to Mr.
Lepsch's guilt?" also stated "No" in
response to the question of whether they would have any
difficulty putting these feelings out of their minds as
jurors. All four who stated they had "ever expressed the
opinion that Mr. Lepsch was guilty" were individually
questioned in some manner as to whether they could base their
decisions on the evidence; each juror verified that he or she
could do so. Lepsch has not demonstrated that the circuit
court's findings regarding bias should be overturned as
to these jurors, and he has not shown prejudice with respect
to his attorneys' questioning of these jurors.
Finally, the juror who qualified his agreement with the
presumption of innocence and who agreed that if the State
goes to the trouble of bringing someone to trial, the person
is probably guilty, was informed that he would be instructed
about the presumption of innocence and that he had to
"start out with looking as Mr. Lepsch as he is innocent,
" that he is "innocent as he sits here today."
The juror was asked if he was "okay with that principle,
" and the juror affirmed that he was. Again, we see no
prejudice resulting from the questioning of this juror.
Before proceeding further, we note that Lepsch takes issue
with our discussion of the law on juror impartiality,
contending that it is contrary to federal law insofar as it
does not require a "final, unequivocal" swearing by
a juror that he or she can set aside his or her beliefs and
opinions and decide the case solely on the evidence. Lepsch
relies predominantly on Patton v. Yount, 467 U.S.
1025 (1984), citing a passage explaining that in a
"federal habeas corpus case in which the partiality of
an individual juror is placed in issue, " the question
before the reviewing court "is plainly one of historical
fact: did a juror swear that he could set aside any opinion
he might hold and decide the case on the evidence, and should
the juror's protestation of impartiality have been
believed." Yount, 467 U.S. at 1036.
We disagree with Lepsch that Supreme Court case
lawdictates that a bright-line rule be
applied in cases involving a defendant's claim he did not
receive an impartial jury. First, it is important to consider
the context of the single line in Yount cited by Lepsch. The
Supreme Court was rejecting, on federal habeas review, the
view of the court of appeals below it that "the question
whether jurors have opinions that disqualify them is a mixed
question of law and fact" such that "the
presumption of correctness due a state court's factual
findings under" federal habeas review was inapplicable.
Id. at 1028-31, 1036. Its focus in that passage was
not the definition of the substantive standard, but instead
the notion that application of the relevant standard was
"not one of mixed law and fact" and that "the
statutory presumption of correctness" thus applied to
the trial court's determinations. See id. at
And indeed, the Yount Court later restated the
applicable inquiry on habeas review as "whether there is
fair support in the record for the state courts'
conclusion that the jurors here would be impartial, "
Jurors . . . cannot be expected invariably to express
themselves carefully or even consistently. Every trial judge
understands this, and under our system it is that judge who
is best situated to determine competency to serve
impartially. The trial judge properly may choose to
believe those statements that were the most fully articulated
or that appeared to have been least influenced by
Yount, 467 U.S. at 1038-39 (emphasis added). This
suggests an amount of leeway inconsistent with the rigid rule
proposed by Lepsch. See also id. at 1039-40
("[I]n the case of alternate juror Pyott, we cannot
fault the trial judge for crediting her earliest testimony,
in which she said that she could put her opinion aside
'[i]f [she] had to, ' rather than the later testimony
in which defense counsel persuaded her that logically she
would need evidence to discard any opinion she might
have."); id. at 1039 ("We think that the
trial judge's decision to seat [juror] Hrin, despite
early ambiguity in his testimony, was confirmed after he
initially denied the challenge. Defense counsel sought and
obtained permission to resume cross-examination. In response
to a question whether [juror] Hrin could set his opinion
aside before entering the jury box or would need evidence to
change his mind, the juror clearly and forthrightly stated:
'I think I could enter it [the jury box] with a very open
mind. I think I could . . . very easily. To say this is a
requirement for some of the things you have to do every
Recent Supreme Court case law supports our understanding of
Yount. In Skilling the Supreme Court
explained that "[n]o hard-and-fast formula dictates the
necessary depth or breadth of voir dire, "
following that statement with a quotation from one of its
earlier cases: "Impartiality is not a technical
conception. It is a state of mind. For the ascertainment
of this mental attitude of appropriate indifference, the
Constitution lays down no particular tests and procedure is
not chained to any ancient and artificial formula."
Skilling, 561 U.S. at 386 (emphasis added) (quoting
United States v. Wood, 299 U.S. 123, 145-46 (1936)).
Finally, Lepsch does not direct us to any Supreme Court cases
explicitly applying his interpretation of the putative test
from Yount. We agree with Lepsch that a prospective juror
must be able to "set aside any opinion he might hold and
decide the case on the evidence." Yount, 467
U.S. at 1036. But, as a general matter, a circuit court need
not use or obtain any magic words in determining whether this
requirement has been met.
In sum, Lepsch has not provided sufficient reason to upset
the circuit court's determination that none of the jurors
who sat on Lepsch's case were biased, either subjectively
or objectively. Thus, even assuming that Lepsch's counsel
performed deficiently at voir dire, Lepsch has failed to
demonstrate that he was prejudiced by this performance and
his ineffective assistance of counsel claim must be rejected.
C.f., e.g., Peterson v. State, 154 So.3d 275, 282
(Fla. 2014) (per curiam) ("Peterson cannot demonstrate
prejudice because no biased juror sat on his jury.");
State v. Erickson, 227 Wis.2d 758, 774, 596 N.W.2d
749 (1999) ("more than rank speculation" is needed
"to satisfy the prejudice prong").
Lepsch also maintains that his right to due process of law
was denied because of "circumstances that create[d] the
'likelihood or the appearance of bias, '"
Peters v. Kiff, 407 U.S. 493, 502 (1972) (plurality
opinion), and because the circuit court "fail[ed] to
conduct a sufficient inquiry regarding such
circumstances." Lepsch's claim is stated in broad
terms and without adequate legal development, and we reject
it. As the circuit court explained:
The court and both parties were aware that this case was
going to be well-known in the community long before the trial
ever began. For that exact reason, the court took extra
precaution to ensure an impartial jury, beyond what it would
do for most jury trials. The extensive questionnaire sent out
to the jurors was used to eliminate 24 jurors who exhibited a
bias indicating they could not sit as objective jurors,
before they ever reported for jury duty and by the agreement
of both parties. After those potential jurors had been
eliminated, the potential jurors who reported were brought
into the courtroom one at a time. They were questioned by the
court and both parties regarding pretrial publicity, their
ability to decide the case only on the evidence presented,
and about any potentially problematic answers on their
questionnaire. More jurors were excused during this process.
Then voir dire began as it normally would.
(Footnote omitted) (citations omitted.) The circuit
court's careful administration of jury selection and the
verbal in-person questioning that took place cured any
possibility of the "likelihood or the appearance of
bias" at least as outlined in the arguments Lepsch has
made. We conclude that he was not denied due
Administration of the Oath to the Prospective Jurors
Next, Lepsch argues that the swearing of prospective jurors
outside of his presence by the La Crosse County Clerk of
Courts violated his rights to be present at all critical
stages of a criminal proceeding, to receive a public trial,
and to receive a trial by an impartial jury. He contends that
his trial attorneys were ineffective in failing "to