Oswald v. Bertrand
| Decision Date | 26 March 2003 |
| Docket Number | No. 01-C-0182.,01-C-0182. |
| Citation | 249 F.Supp.2d 1078 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | Theodore W. OSWALD, Petitioner, v. Daniel BERTRAND, Respondent. |
Jerome Butting, Kathleen Stilling, Brookfield, WI, for Petitioner.
Warren Weinstein, Madison, WI, for Respondent.
DECISION AND ORDER
Theodore W. Oswald, a Wisconsin state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction of nineteen offenses in Waukesha County Circuit Court in 1995, for which he was sentenced to 565 years in prison consecutive to two life sentences (in addition to ten years to be served concurrently).
Petitioner was charged with and convicted of three counts of party to the crime of aiding and abetting an armed robbery while concealing identity; one count of party to a conspiracy to commit first-degree intentional homicide by using a bulletproof vest and a dangerous weapon plus one count of an attempt of the same crime; one count of party to the crime of aiding and abetting the armed taking of a vehicle without consent using a bulletproof vest; one count of party to the crime of aiding and abetting armed burglary using a bulletproof vest; one count of party to the crime of aiding and abetting the armed taking of hostages by force or threat using a bulletproof vest; one count of party to the crime of aiding and abetting the armed operation of a motor vehicle without consent using a bulletproof vest; eight counts of party to the crime of aiding and abetting attempted first-degree intentional homicide using a bulletproof vest and a dangerous weapon; one count of party to the crime of aiding and abetting first-degree recklessly endangering safety using a bulletproof vest and a dangerous weapon. State v. Theodore Oswald, 232 Wis.2d 62, 67 n. 2, 606 N.W.2d 207 (Ct.App.1999).
Petitioner unsuccessfully sought postconviction relief in the trial court and then appealed to the state court of appeals. The court of appeals did not immediately decide the case but rather certified it to the state supreme court. However, the state supreme court refused to accept certification and returned the case to the court of appeals. The court of appeals then affirmed the conviction; and the state supreme court denied petitioner's request for review.
In his habeas petition, petitioner claims that: (1) his constitutional rights to due process and an impartial jury were denied because the trial court failed to adequately inquire into questions concerning juror bias that arose during jury selection; (2) his constitutional rights to due process and an impartial jury were denied because a biased juror served on the jury; (3) his constitutional rights to due process and an impartial jury were denied because the state courts arbitrarily deprived him of statutory rights relating to jury selection; and (4) his right to effective assistance of counsel was denied as the result of his trial counsel's inadequate handling of a possible insanity defense.
Petitioner, who was eighteen years old at the time, robbed a bank with his father, James H. Oswald, in Wales, Wisconsin on the morning of April 28, 1994. They fled and traveled toward Waukesha. Two City of Waukesha police officers stopped the Oswald vehicle, at which point the Oswalds, armed with semi-automatic rifles, got out of the vehicle and shot at the officers, killing one. A chase ensued during which the Oswalds forced their way into a private residence, took a woman hostage and forced her to drive them away in her vehicle. The chase ended in a shootout between the Oswalds and numerous police officers in which two officers and the hostage sustained gunshot wounds. By the time of the shootout, the local media had learned of the incident, and the shootout, the escape of the hostage and the crash of the getaway vehicle were filmed live and rebroadcast extensively. State v. James H. Oswald, 232 Wis.2d 103, 109, 606 N.W.2d 238 (Ct.App.1999).
The case generated an enormous amount of publicity both in the immediate aftermath of the crime and during the period leading up to the trials of the Oswalds. The serious nature of the offenses, the fact that a local police officer was killed, the existence of the highly unusual videotape (with its echoes of the O.J. Simpson case) and the fact that the defendants were father and son combined to make the case probably the most notorious in the history of Waukesha County.
Petitioner was tried separately from his father. Petitioner's trial commenced on February 13, 1995, about ten-and-a-half months after the offenses were committed. His defense was that his father coerced his participation in the offenses. Under Wisconsin law, coercion is a complete defense to any criminal charge except first-degree intentional homicide, in which case it reduces the offense to second-degree intentional homicide. Wis. Stat. § 939.46(1). Petitioner did not request a change of venue, theorizing that because some of the publicity had portrayed him as a victim of his abusive and manipulative father, a local jury might be more receptive to his defense than a jury elsewhere.
Questionnaires were sent to 156 jurors. More than eighty percent responded that, based on media coverage of the events, they believed that petitioner was guilty. The effect of the publicity was reflected in some of their comments. Six jurors suggested a trial would be a waste of taxpayers' time and money. Five expressed concern about their personal security because the offenses occurred so close to home. Nine said petitioner should have either died in the crash or should receive the death penalty if it were available.
In the months before trial, the widow of the police officer who was killed initiated a highly-publicized petition drive to have the death penalty reinstated in Wisconsin. About a month before the trial began, she submitted a petition with 4,000 signatures to the legislature. One of the jurors indicated that she had signed the petition.
Of the more than 150 jurors summoned to the voir dire, fifty were questioned. The plan was to obtain a pool of twentynine from which peremptory challenges would be exercised so that there would be three alternate jurors; and each party would have seven peremptory strikes.
I will state the remaining facts by categorizing them according to the claim to which they relate, although some facts relate to more than one claim.
B. Facts Relating to Claim That Trial Court Failed to Adequately Inquire Into Questions Concerning Juror Bias That Arose During Jury Selection
Jurors gathered in a jury assembly room in the courthouse. From the jury assembly room, a bailiff escorted them to the courtroom where the court and counsel questioned each individually. On several occasions, the court instructed jurors not to discuss the case among themselves.
Late in the morning of the fourth day of jury selection, juror Roger Klitzka told the court and counsel that he did not know much about the case before coming to court, but that he had learned much from other jurors. He stated that:
I know I've learned more in the last three days here sitting down in that room about this case than I have since the day that it happened .... according to what I hear, the young man is guilty of what he is being accused of and things like that and everything and I think it's just a waste of time.
(App. to Pet'r's Mem., hereinafter "App.," at 507-08.)
Klitzka also said that as the result of the information he had received from other jurors, he concluded that the trial would be a waste of time. This is reflected in the following colloquy with the court:
Q. That it's a waste of time to have the trial at all?
A. Yes.
Q. The—you understand that an individual who is charged with crimes or criminal activity is entitled and has a right to have a trial and to require the state prove that he committed whatever he's charged with?
A. Yes. I understand it, but I was just giving you my opinion on it.
(Id. at 508.)
Neither the court nor the prosecutor asked Klitzka any follow-up questions about his disclosure that jurors were talking about the case in the jury assembly room. After the court completed its questioning of Klitzka, the prosecutor asked him whether he could keep an open mind; and Klitzka responded that everything that he heard was hearsay and that "if you can come up with actual evidence and things like that, yes sir." (Id. at 516.)
Petitioner's counsel then attempted to follow up on Klitzka's statement about conversations in the jury assembly room, stating: "I'm somewhat concerned that you've heard a lot about this case in the last 3 days and ... I'm wondering if you could tell us specifically what types of things you've heard about the case"? Klitzka responded: "No, I won't tell you that." (Id. at 519.) Petitioner's counsel then asked for a sidebar at which he stated:
Judge, I'm very concerned Mr. Klitzka told us that he's obtained almost all of his information on this case in the last 3 days and he refused to answer my inquiry on that issue.... If he's been getting his information in the past 3 days, first of all, he's in violation of—of the court's order not to discuss it .... Now, if it was inadvertent or minimal I suppose that could be understandable and excusable, but to have no opinion before Monday that I'm aware of and then to form a strong opinion that he's—that Mr. Oswald is guilty based on what he's heard in the last 3 days is very troubling to me so I would ask the court to call Mr. Klitzka back and I would ask the court to inquire specifically concerning these matters and inform Mr. Klitzka that he's required to provide this information.
The prosecutor objected arguing that the question would intrude "into his [Klitzka's] privacy" and involved a matter that was "none of his [petitioner's counsel...
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