As jury selection began for the trial of Sharon Sellhausen, it turned out that one of the prospective jurors was the daughter-in-law of the trial judge. Although the judge could have, and should have, excused such a close relative from service on the jury, he did not do so. Nor did the prosecution or defense seek the daughter-in-law’s removal for cause. Perhaps that seemed a perilous course of action after the judge had gone to some effort to create a record that the daughter-in-law would be impartial. In any event, defense counsel chose to remove the daughter-in-law through the less confrontational method of the peremptory strike, which saved the judge from having to rule on the suitability of his daughter-in-law serving on the jury.
But, of course, the defendant was thereby out a peremptory. Thus, she could with some reason complain on appeal about the trial judge’s failure to remove the daughter-in-law sua sponte.
Earlier this month, the Wisconsin Supreme Court agreed in State v. Sellhausen, 2012 WI 5, that sua sponte removal would have been preferable, but declined nonetheless to grant the defendant a new trial. Since the daughter-in-law was eventually struck and did not serve on the jury, the court held that any error was harmless.
The case seems to embrace the broad principle that erroneous failures to excuse a prospective juror for cause will always be regarded as harmless where the prospective juror is later struck.