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State v. Lepsch

Supreme Court of Wisconsin

March 31, 2017

State of Wisconsin, Plaintiff-Respondent,
Jeffrey P. Lepsch, Defendant-Appellant-Petitioner.

          SUBMITTED ON BRIEFS ORAL ARGUMENT: November 9, 2016

         Circuit Court La Crosse County, L.C. No. 2012CF691, Ramona A. Gonzalez Judge

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

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

          For the plaintiff-respondent the cause was argued by Sara Lynn Shaeffer, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

          JUSTICES: CONCURRED: ABRAHAMSON, J., joined by BRADLEY, A. W., J. (except for the first sentence of ¶90) concur (Opinion filed).


         ¶1 This is a review of an unpublished decision of the court of appeals, State v. Lepsch, No. 2014AP2813-CR, unpublished slip op.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[1] judgment of conviction of defendant Jeffrey Lepsch ("Lepsch") and order denying Lepsch's motion for postconviction relief.

         ¶2 A jury found Lepsch guilty of killing two individuals during an armed robbery in La Crosse, Wisconsin.[2] Lepsch was sentenced to consecutive life terms in prison. Before this court, Lepsch argues he is entitled to a new trial due to alleged errors pertaining to jury selection and the jury Lepsch received.

         ¶3 More specifically, Lepsch presents the following arguments: (1) Lepsch's right to a trial by an impartial jury was violated because certain of the jurors in his case were subjectively and objectively biased; (2) Lepsch's right to due process of law was violated because of circumstances that created the likelihood or appearance of bias and because of alleged deficiencies in the circuit court's investigation into and mitigation of these circumstances; (3) Lepsch's right to be present at a critical stage of his proceedings, right to a public trial, and right to a jury properly sworn to be impartial were violated because the La Crosse County Clerk of Courts administered the oath to the prospective jurors in Lepsch's case outside of Lepsch's presence;[3] and (4) Lepsch's right to receive the proper number of peremptory strikes, to full use of those strikes, and to have biased jurors removed for cause was violated by the circuit court. Lepsch explains that "all of the issues litigated in this appeal have been raised via a claim of ineffective assistance of counsel."[4]

         ¶4 We conclude that each of Lepsch's claims fails, and that he is not entitled to a new trial. Consequently, we affirm the decision of the court of appeals. '


         ¶5 On September 15, 2012, police were dispatched to a store in La Crosse, WI. The bodies of P.P. and A.P had been discovered by a family member at the store; each had been shot in the head. There were also signs of a robbery.

         ¶6 On October 10, 2012, Lepsch was charged with two counts of first-degree intentional homicide, contrary to Wis.Stat. § 940.01(1)(a). The following day, an amended complaint was filed additionally charging Lepsch with armed robbery with use of force, contrary to Wis.Stat. § 943.32(1)(a) and (2), and possession of a firearm by a felon, contrary to 941.29(2)(a). On October 25, 2012, at Lepsch's arraignment, Lepsch stood mute and the circuit court entered pleas of not guilty on his behalf. A few months later, the case was set for a jury trial.

         ¶7 Jury selection in this case proceeded as follows. Prior to the date of jury selection, prospective jurors completed paper questionnaires asking dozens of questions on subjects ranging from the jurors' favorite television shows to the jurors' views on various legal propositions. These questionnaires required a signature under the following statement: "I affirm, under penalty of perjury, that I have given complete and honest answers to all of the questions above." The parties agreed to excuse about two dozen prospective jurors at least in part on the basis of the answers provided. On July 23, 2013, jury selection itself occurred. Prospective jurors gathered in the "jury assembly room, " where they were sworn by the La Crosse County Clerk of Courts. The parties seem to agree that neither Lepsch nor his attorneys were present when the oath was administered.

         ¶8 Certain prospective jurors were then brought into the courtroom for individual questioning in the presence of the court, Lepsch, and his attorneys. A number of prospective jurors were excused. Next, remaining prospective jurors were brought into the courtroom as a group and questioned in the presence of the court, Lepsch, and his attorneys. Finally, Lepsch and the State were each given six peremptory strikes and a panel of 15 jurors was selected.

         ¶9 From Wednesday, July 24, 2013, to Friday, July 26, 2013, and from Monday, July 29, 2013, to Tuesday, July 30, 2013, Lepsch was tried before the jury. There is no dispute that this jury was properly sworn by a clerk in Lepsch's presence in court at the start of his trial. On July 30, 2013, the jury returned a verdict of guilty as to all counts charged. On September 3, 2013, the circuit court sentenced Lepsch to two life sentences without extended supervision for the homicide charges, a 40-year term of imprisonment for the armed robbery charge, and a 10-year term of imprisonment for the possession of a firearm by a felon charge, all to be served consecutively. On September 4, 2013, the judgment of conviction was entered.

         ¶10 On November 25, 2013, Lepsch filed a notice of intent to seek postconviction relief, and on July 15, 2014, Lepsch filed a postconviction motion for a new trial. In his motion he challenged the convictions asserting that he received ineffective assistance of counsel. On September 4, 2014, the circuit court held a Machner hearing on Lepsch's motion. See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979). On November 14, 2014, the circuit court denied Lepsch's motion.

         ¶11 On December 2, 2014, Lepsch filed a notice of appeal. On November 19, 2015, the court of appeals affirmed the circuit court's judgment of conviction and order denying postconviction relief in an unpublished, per curiam opinion. Lepsch, unpublished slip op., ¶1.

         ¶12 On December 4, 2015, Lepsch filed a petition for review in this court. On May 11, 2016, this court granted the petition.


         ¶13 "A claim of ineffective assistance of counsel is a mixed question of fact and law." State v. Ortiz-Mondragon, 2015 WI 73, ¶30, 364 Wis.2d 1, 866 N.W.2d 717 (quoting State v. Carter, 2010 WI 40, ¶19, 324 Wis.2d 640, 782 N.W.2d 695). We review the circuit court's findings of fact under a clearly erroneous standard, but independently determine the legal question of whether counsel's assistance was ineffective. Id. (quoting Carter, 324 Wis.2d 640, ¶19).

         ¶14 We "review[] constitutional questions, both state and federal, de novo." State v. Lagrone, 2016 WI 26, ¶18, 368 Wis.2d 1, 878 N.W.2d 636 (quoting State v. Schaefer, 2008 WI 25, ¶17, 308 Wis.2d 279, 746 N.W.2d 457).

         ¶15 Other applicable standards will be discussed below.

         III. ANALYSIS

         ¶16 Lepsch's appeal focuses on his ineffective assistance of counsel claim.[5] Lepsch possesses state and federal constitutional rights to the effective assistance of counsel. U.S. Const. amends. VI, XIV; Wis. Const. art. I, § 7;[6] 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).

         A. Impartial Jury

         ¶17 In Lepsch's first ineffective assistance of counsel claim, Lepsch argues his attorneys were ineffective in failing to raise jury bias issues during jury selection. As a result, he claims nine of the jurors in his case were biased, which denied him his right to an impartial jury under the Wisconsin and federal constitutions. Lepsch bases this challenge on various answers given in response to four questions on the pre-trial questionnaires completed by the prospective jurors. He argues that his attorneys were ineffective for "failing to sufficiently examine and challenge prospective jurors for cause."

         ¶18 We now present the four questions at issue. Question 30 of the questionnaire reads as follows: "You will be hearing testimony from several police officers in this case. Do you think you would give police officers more credibility, less credibility or the same amount of credibility as other witnesses who were not police officers?" The question contained spaces for the prospective juror to check "more credibility, " "less credibility, " or "the same credibility, " and asked the prospective juror to explain his or her answer. Seven of the twelve jurors who sat on Lepsch's case answered "more credibility."[7]

         ¶19 Question 35 of the questionnaire contained the following questions, among others: (1) "Have you ever expressed the opinion that Mr. Lepsch was guilty?"; (2) "Do you have any feelings at this time that you have made up your mind as to Mr. Lepsch's guilt?"; and (3) "IF YES, would you have any difficulty putting these feelings out of your mind if you were chosen to be a juror?". Each question was followed by spaces for the prospective juror to check "Yes" or "No." Four of the twelve jurors on Lepsch's jury answered that they had expressed the opinion that Mr. Lepsch was guilty.[8] Three of these same four jurors answered that they "ha[d] . . . feelings" that they had made up their mind as to Lepsch's guilt.[9] Each of these three then answered that they would not have any difficulty putting the feelings out of their mind if they were chosen to be a juror.

         ¶20 Question 32 asked, "Do you have any problem with the legal proposition that a defendant must be presumed innocent unless and until the prosecution can prove he or she is guilty?" And Question 34 asked a related question: "Do you think if the state goes to the trouble of bringing someone to trial, the person is probably guilty?" Both questions left spaces for the prospective juror to check "Yes" or "No, " and both questions asked for the prospective juror to explain his or her answer. One juror answered "No" to Question 32 (regarding the presumption of innocence) but then explained his answer as follows: "In general, no. But I do not believe that this should be the case 100% of the time. I believe that there are cases in which there is immediate & overwhelming evidence (i.e. physical evidence, audio/video evidence, confessions, etc.) should be presumed guilty until trial [sic]." The same juror answered Question 34 (relating to whether a person brought to trial is probably guilty) as follows: "Probably? Yes. Definitely? Not necessarily. I would hope that the courts would not bring someone in just so they have someone to try. I would hope there would at least be a fair amount of evidence or cause before bringing someone in."[10]

         ¶21 Before addressing the deficiency and prejudice prongs of Lepsch's ineffective assistance of counsel claim, we set forth the law governing juror bias. "The United States Constitution and Wisconsin's Constitution guarantee an accused an impartial jury." State v. Mendoza, 227 Wis.2d 838, 847, 596 N.W.2d 736 (1999) (citing U.S. Const. amends. VI and XIV; Wis. Const., art. I, § 7).[11] "To be impartial, a juror must be indifferent and capable of basing his or her verdict upon the evidence developed at trial." State v. Faucher, 227 Wis.2d 700, 715, 596 N.W.2d 770');">596 N.W.2d 770 (1999) (citing Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

         ¶22 "Reviewing courts are properly resistant to second-guessing the trial judge's estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record--among them, the prospective juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty." Skilling v. United States, 561 U.S. 358, 386 (2010). "Prospective jurors are presumed impartial" and Lepsch "bears the burden of rebutting this presumption and proving bias." State v. Funk, 2011 WI 62, ¶31, 335 Wis.2d 369, 799 N.W.2d 421 (quoting State v. Louis, 156 Wis.2d 470');">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.

         ¶23 Subjective bias refers to "bias that is revealed through the words and the demeanor of the prospective juror." Faucher, 227 Wis.2d at 717. "[T]he circuit court sits in a superior position to assess the demeanor and disposition of prospective jurors, and thus, whether they are subjectively biased." Id. at 718. Accordingly, "we will uphold the circuit court's factual finding that a prospective juror is or is not subjectively biased unless it is clearly erroneous." Id.

         ¶24 The concept of objective bias relates to the question of "whether [a] reasonable person in the individual prospective juror's position could be impartial." Id.

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

Funk, 335 Wis.2d 369, ¶30 (citations omitted) (quoting Faucher, 227 Wis.2d at 720-21).

         ¶25 In order to succeed on his ineffective assistance of counsel claim, Lepsch must prove that his attorneys acted deficiently during jury selection and that he was prejudiced by this performance. Our review demonstrates that none of the jurors who sat on Lepsch's case were biased, either subjectively or objectively, and that Lepsch was therefore not prejudiced by the performance of his attorneys, even if the performance was deficient in some respect (a question we need not decide).

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

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

         ¶27 Lepsch cannot establish ineffective assistance because he cannot prove either objective or subjective bias. Seven of Lepsch's jurors stated in the questionnaire that they would give police officers more credibility than witnesses who were not police officers.[12] Five of these jurors, however, were specifically questioned on that answer, and the lawyers and/or the court examined this belief and ensured that the jurors could decide the case impartially. To take just one example, [13] the court asked R.F. the following with regard to law enforcement officers:

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

R.F. responded, "Yes, Your Honor." The court then confirmed, "So you can -- you can look at them as you would any other witness?" R.F. responded, "Yes." Given our deference to the circuit court on these types of questions, we will not displace the circuit court's conclusion that these jurors were not biased when they sat on Lepsch's case.

         ¶28 J.A. and D.M. are the two jurors who were not specifically questioned on this point. However, other aspects of the jury selection process provide support for the circuit court's rejection of Lepsch's claims of bias. Both J.A. and D.M. checked "No" on their questionnaires next to the question, "Is there any reason why you could not be impartial in this case?" And D.M. stated elsewhere on his questionnaire, "I believe in facts, not people." See, e.g., Griffin v. Bell, 694 F.3d 817, 823-24) (7th Cir. 2012) ("[Juror] Carel, of course, never said that she could not be fair. At most, she indicated that her first inclination, if faced with conflicting stories from a police officer and a fourteen-year-old boy, would 'most likely' be to believe the officer. . . . In this case, although [juror] Carel expressed an initial inclination that police officers are more credible than teenagers, she never expressed an irrational or unshakeable bias that indicated an inability or unwillingness to faithfully and impartially apply the law."); United States v. Ricketts, 146 F.3d 492, 496 (7th Cir. 1998) ("In the abstract, it is certainly not unreasonable for an ordinary person to say she would generally tend to believe a prison guard over a prison inmate. But that certainly doesn't mean that in a given case, after hearing sworn testimony under oath and considering all the facts and circumstances, that that same juror would automatically believe a given guard over a given inmate. Generalized questions of the sort asked here are a slim basis upon which to base a challenge for cause.").

         ¶29 Further, both J.A. and D.M. were present during questioning of the jurors as a group. Given the general tenor of voir dire, the prospective jurors could not have "fail[ed] to recognize that bias in favor of law enforcement officials was inappropriate." United States v. Lancaster, 96 F.3d 734, 742-43 (4th Cir. 1996) (reaching this conclusion in part because the court had inquired about "bias in favor of law enforcement officials resulting from a relationship with a relative or friend in law enforcement"). The defense informed the prospective jurors, "[T]here's no wrong answers, and I want you guys to talk to me. We're after an unbiased jury here, and it's okay to have biases. We all have them." Topics touched on during questioning by the defense were whether the police can make mistakes, whether it is important that law enforcement follow procedures, whether police "ever let bias get in the way of what they're looking for, " whether "we tend to trust professionals [including police] a little more than we should sometimes, " and how to determine whether a professional such as a policeman "has the right training or experience."

         ¶30 Moreover, earlier in voir dire, the State explained to the prospective jurors, "both sides want people who are fair, objective, " later adding:

[B]y now you've gotten some pretty good ideas through the questionnaires and all the questioning of the kind of things we want to know about people. Is there anything that anybody hasn't asked and you've just been sitting here waiting, why don't they ask me this because I really shouldn't be on this jury, but nobody's asked me why? Is there anything that we haven't asked at this point, anyone who says, I should not be here; I can't be fair; and we just haven't asked the right question yet?

         There was no response. See Lancaster, 96 F.3d at 743 ("Under these circumstances, the district court's final voir dire question--'Ladies and Gentlemen, do you know of any reason, is there anything at all any of you know of that would make it difficult for you to sit as an impartial juror in this case?'-- could not have failed to elicit an affirmative response from any member of the venire harboring a bias in favor of law enforcement officials." (citation omitted)). Again, given the standard of review, we are not in a position to disturb the circuit court's judgment that no bias existed on Lepsch's jury in this regard. Thus, even assuming Lepsch's attorneys should have examined this matter further during jury selection in some way, Lepsch has not proven that he was prejudiced by the performance.

         ¶31 Lepsch's claims of bias regarding jurors who said they had expressed an opinion on Lepsch's guilt or had made up their mind as to Lepsch's guilt are also unpersuasive. Each of the three jurors who stated "Yes" on their questionnaires when asked, "Do you have any feelings at this time that you have made up your mind as to Mr. Lepsch's guilt?" also stated "No" in response to the question of whether they would have any difficulty putting these feelings out of their minds as jurors. All four who stated they had "ever expressed the opinion that Mr. Lepsch was guilty" were individually questioned in some manner as to whether they could base their decisions on the evidence; each juror verified that he or she could do so. Lepsch has not demonstrated that the circuit court's findings regarding bias should be overturned as to these jurors, and he has not shown prejudice with respect to his attorneys' questioning of these jurors.

         ¶32 Finally, the juror who qualified his agreement with the presumption of innocence and who agreed that if the State goes to the trouble of bringing someone to trial, the person is probably guilty, was informed that he would be instructed about the presumption of innocence and that he had to "start out with looking as Mr. Lepsch as he is innocent, " that he is "innocent as he sits here today." The juror was asked if he was "okay with that principle, " and the juror affirmed that he was. Again, we see no prejudice resulting from the questioning of this juror.

         ¶33 Before proceeding further, we note that Lepsch takes issue with our discussion of the law on juror impartiality, contending that it is contrary to federal law insofar as it does not require a "final, unequivocal" swearing by a juror that he or she can set aside his or her beliefs and opinions and decide the case solely on the evidence. Lepsch relies predominantly on Patton v. Yount, 467 U.S. 1025 (1984), citing a passage explaining that in a "federal habeas corpus case in which the partiality of an individual juror is placed in issue, " the question before the reviewing court "is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Yount, 467 U.S. at 1036.

         ¶34 We disagree with Lepsch that Supreme Court case law[14]dictates that a bright-line rule be applied in cases involving a defendant's claim he did not receive an impartial jury. First, it is important to consider the context of the single line in Yount cited by Lepsch. The Supreme Court was rejecting, on federal habeas review, the view of the court of appeals below it that "the question whether jurors have opinions that disqualify them is a mixed question of law and fact" such that "the presumption of correctness due a state court's factual findings under" federal habeas review was inapplicable. Id. at 1028-31, 1036. Its focus in that passage was not the definition of the substantive standard, but instead the notion that application of the relevant standard was "not one of mixed law and fact" and that "the statutory presumption of correctness" thus applied to the trial court's determinations. See id. at 1036-38.

         ¶35 And indeed, the Yount Court later restated the applicable inquiry on habeas review as "whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial, " adding,

Jurors . . . cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.

Yount, 467 U.S. at 1038-39 (emphasis added). This suggests an amount of leeway inconsistent with the rigid rule proposed by Lepsch. See also id. at 1039-40 ("[I]n the case of alternate juror Pyott, we cannot fault the trial judge for crediting her earliest testimony, in which she said that she could put her opinion aside '[i]f [she] had to, ' rather than the later testimony in which defense counsel persuaded her that logically she would need evidence to discard any opinion she might have."); id. at 1039 ("We think that the trial judge's decision to seat [juror] Hrin, despite early ambiguity in his testimony, was confirmed after he initially denied the challenge. Defense counsel sought and obtained permission to resume cross-examination. In response to a question whether [juror] Hrin could set his opinion aside before entering the jury box or would need evidence to change his mind, the juror clearly and forthrightly stated: 'I think I could enter it [the jury box] with a very open mind. I think I could . . . very easily. To say this is a requirement for some of the things you have to do every day.'").

         ¶36 Recent Supreme Court case law supports our understanding of Yount. In Skilling the Supreme Court explained that "[n]o hard-and-fast formula dictates the necessary depth or breadth of voir dire, " following that statement with a quotation from one of its earlier cases: "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." Skilling, 561 U.S. at 386 (emphasis added) (quoting United States v. Wood, 299 U.S. 123, 145-46 (1936)). Finally, Lepsch does not direct us to any Supreme Court cases explicitly applying his interpretation of the putative test from Yount. We agree with Lepsch that a prospective juror must be able to "set aside any opinion he might hold and decide the case on the evidence." Yount, 467 U.S. at 1036. But, as a general matter, a circuit court need not use or obtain any magic words in determining whether this requirement has been met.

         ¶37 In sum, Lepsch has not provided sufficient reason to upset the circuit court's determination that none of the jurors who sat on Lepsch's case were biased, either subjectively or objectively. Thus, even assuming that Lepsch's counsel performed deficiently at voir dire, Lepsch has failed to demonstrate that he was prejudiced by this performance and his ineffective assistance of counsel claim must be rejected. C.f., e.g., Peterson v. State, 154 So.3d 275, 282 (Fla. 2014) (per curiam) ("Peterson cannot demonstrate prejudice because no biased juror sat on his jury."); State v. Erickson, 227 Wis.2d 758, 774, 596 N.W.2d 749 (1999) ("more than rank speculation" is needed "to satisfy the prejudice prong").

         ¶38 Lepsch also maintains that his right to due process of law was denied because of "circumstances that create[d] the 'likelihood or the appearance of bias, '" Peters v. Kiff, 407 U.S. 493, 502 (1972) (plurality opinion), and because the circuit court "fail[ed] to conduct a sufficient inquiry regarding such circumstances." Lepsch's claim is stated in broad terms and without adequate legal development, and we reject it. As the circuit court explained:

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

(Footnote omitted) (citations omitted.) The circuit court's careful administration of jury selection and the verbal in-person questioning that took place cured any possibility of the "likelihood or the appearance of bias" at least as outlined in the arguments Lepsch has made.[15] We conclude that he was not denied due process.[16]

         B. Administration of the Oath to the Prospective Jurors

         ¶39 Next, Lepsch argues that the swearing of prospective jurors outside of his presence by the La Crosse County Clerk of Courts violated his rights to be present at all critical stages of a criminal proceeding, to receive a public trial, and to receive a trial by an impartial jury. He contends that his trial attorneys were ineffective in failing "to ensure ...

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