Anne: Rivera reserves the possibility of local courts deciding, "as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se,” so my question is: Am I right in assuming that pitching such a claim to a Wisconsin court would fall on deaf ears in light of State v. Lindell, 2001 WI 108 (harmless error analysis applies to erroneous failure to strike biased juror for cause error and juror removed by peremptory)? Seems to me that, though not factually identical to Rivera, Lindell is more or less analytically identical in its shift of focus to impartiality of the jurors actually impaneled. Relatedly, is there a controlling Wisconsin case closer factually to Rivera that I've overlooked? Thanks much.

Anne: Knowing next to nothing about this, I'm confused as to why Prof. Martin's comments don't fall within the R. 606 ban on verdict impeachment; more particularly: why his statements about what happened during deliberations were "competent" to impeach the verdict. (Unless, of course, NJ doesn't follow such a rule, something I haven't bothered to figure out; but if it doesn't, then that makes the result pretty idiosyncratic anyway.) Assuming a 606-type analysis applies, then there's an exception for "extraneous" influences. Can a lawyer/law professor's explanations of the instructions be extraneous? Strikes me as a stretch, otherwise why wouldn't you be able to impeach a verdict by showing how any jury (mis)construed the instructions? Anderson v. Burnett County, 207 Wis.2d 587, 597, 558 N.W.2d 636 (Ct. App. 1996) ("we will accept the erroneous and even foolish reasoning of jurors as a reflection of the human condition that all jurors bring to the jury deliberation table"). I suppose there might be something like the following argument: A jury relying on an erroneous dicitonary definition for an element has relied on extraneous information, therefore the impeachment-exception rule is triggered, State v. Ott, 111 Wis.2d 691, 331 N.W.2d 629 (Ct.App. 1983); an authority figure purporting to define the instructions stands as a dictionary and his or her definitions are no less extraneous; therefore, th verdict may be impeached with this figure's definitional embellishments. I don't, myself, buy the analogy, but then I'm left with no reason the verdict is subject to impeachment. In the final analysis, then, I'm inclined to assume that NJ simply has an extremely generous (profligate, if one prefers) view of verdict-impeachment, and that a 606 analysis would yield a different result. Am I missing something?

Lawyers being, well, lawyers, wouldn't you know there's an effort afoot to ban "appearance-based discrimination"? (http://writ.lp.findlaw.com/colb/20070321.html) More to the point: how would a challenge to "lookism" work *in* the courtroom? If "lookism" truly is a serious enough form of discrimination to take on, then you'd want it eliminated from the courtroom as much as you would from social interactions. What, then, is to be done? Tie counsel's hands by requiring that with enough strikes of unattractive jurors you've got to cough up neutral justifications per Batson? Pattern instruction cautioning jurors not to consider the looks of the attorneys, witnesses or for that matter their fellow jurors? Yikes. I dearly like your advice: get over it and then set about maximizing whatever advantageous traits you bring to the table.

Anne: Thanks much for this wonderful resource. Who knows, there might even be implications for criminal procedure. The Seventh Amendment has no seeming application, because on its own terms it applies only to civil suits at common law. However, there's a parallel Wisconsin Constitution provision, Art. I § 5, which contains language both similar and similarly absolutist: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy[.]” True, this provision is also limited to civil cases, Dane Co. v. McGrew, 2005 WI 130, ¶13, http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=19054, but at least it's a starting point. Where this is likely to come up is with regard to restitution following conviction. Wisconsin has a very expansive view of restitution liability, indeed Wisconsin has a very expansive view of causation, period; so expansive that in combination you can easily have liability without fact-finding in any meaningful sense. E.g., State v. Rash, 2003 WI App 32, http://www.wicourts.gov/html/ca/02/02-0841.htm (restitution for damage to victim’s car upheld, where Rash abducted victim for 20-30 minutes, during which time the unattended and unlocked car was broken into by unknown actor(s); no claim Rash either knew about or himself perpetrated break-in). But as Judge Posner has explained, U.S. v. Scott, 405 F.3d 615 (7th Cir 2005), http://caselaw.lp.findlaw.com/data2/circs/7th/041053p.pdf, "The line between criminal restitution and common law damages is important to maintain. ... In addition, to blur the line would create a potential issue under the Seventh Amendment because the amount of criminal restitution is determined by the judge, whereas a suit for damages is a suit at law within the amendment’s meaning." That line has been all but eradicated let alone blurred; unconstitutionality of summary judgment may be an impetus to redrawing the boundary. Nor are the potential implications limited to that context; instead, there may be broader impact on sentencing fact-finding altogether -- a point made generally by Paul F. Kirgis, “The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment can Teach the Sixth,” http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID666942_code436781.pdf?abstractid=666942&mirid=1. Not to mention the court's authority to deem an offense element one of "law" rather than "fact," and thus take it away from the jury (determine it by summary judgment, if you will), State v. Smith, 2005 WI 104, http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=18884.

Davod refers to Lynne Stewart, who ran a messenger service for the Islamic Group while "acting" (I used the term advisedly) as the blind Sheik Omar Abdel-Rahman's attorney. How do you "find a system that ensures they are only communicating with the attorneys"? Eavesdrop on all attorney-client conferences? You can't do that; there's no system that will stop the next Lynne Stewart. (Note, by the way, the stock description of Stewart by numerous leftists, even after her conviction for abusing her status to further terrorism, as a "civil rights" attorney.)