A Minnesota man charged in the 2012 double homicide of a father and son in downtown La Crosse will have his appeal heard in front of the Wisconsin Supreme Court on Wednesday.
He contends he was denied his constitutional rights based on the manner in which the jury venire was sworn prior to jury voir dire, the presence of biased jurors on the jury panel, denial of the proper number of peremptory strikes, and ineffective assistance of counsel.
Jeffrey Lepsch is serving two mandatory life sentences for first-degree intentional homicide, 25 years of initial confinement and 15 years of extended supervision for armed robbery, and five years of initial confinement and 15 years of extended supervision for felon in possession of a firearm, with all sentences running consecutively.
During Wednesday's hearing, Steven Zaleski, Lepsch's appeals attorney, argued several of the jurors on his trial jury were not impartial.
"Of the 12 jurors pulled from the group of 65, four of them in pre-trial questionnaires expressed the belief or opinion that Mr. Lepsch was guilty," he said. "Of those four, three expressed feelings their mind was made up and those opinions were never examined further."
The state countered, claiming Lepsch's trial attorneys never asked for any of the jurors to be stricken from the jury and were seemingly okay with the answers given on pre-trial questionnaires along with further questioning.
"When asked if they had a problem with the legal proposition that a defendant must be presumed innocent until the prosecution can prove he is guilty, they both said no," Sara Shaeffer, Assistant Attorney General, said.
Zaleski also argued several of those same jurors claimed they would place more credibility in a law enforcement officer's testimony than a non-law enforcement officer.
"That's clearly an issue, considering there were officers who testified in this case with important information," he said.
Lepsch was convicted of fatally shooting Paul and A.J. Petras at May's Photo in downtown La Crosse in September of 2012.
At the trial, police testified surveillance footage from downtown businesses showed a distinct van outside May's Photo around the time of the murders. It was a Dodge with an upside-down trailer hitch. Investigators compiled a list of similar vans in the area and found one outside the home of Lepsch with a similar trailer hitch.
Detectives executed a search warrant on the home and testified that inside they found a number of items with serial numbers matching items missing from May's. They also found internet postings selling camera equipment on Lepsch's home computer.
In a taped interview with police the day of his arrest, Lepsch claimed he purchased the items on Craig's List. But police testified Lepsch had possession of or internet postings selling nearly all of the $17,000 worth of missing items. According to police Lepsch was broke. He was behind on his mortgage and owed more than $53,000 for a prior conviction and could not have purchased the items.
After about three days of testimony the prosecution rested and the defense presented their case in less than an hour. Calling only two witnesses: Lepsch's wife and his mother. Lepsch did not take the stand.
The jury deliberated for about four and a half hours before reaching a guilty verdict on all charges.
Before the prospective jurors arrived in the courtroom for jury voir dire, the clerk of the circuit court administered the oath to the jury venire – the full panel of potential jurors – in a jury assembly room. Following voir dire, each side was allowed, and utilized, six peremptory strikes. Following trial, the jury returned guilty verdicts on all counts.
Lepsch filed a post-conviction motion for a new trial, contending that he was denied his constitutional rights based on the manner in which the jury venire was sworn prior to jury voir dire, the presence of biased jurors on the jury panel, denial of the proper number of peremptory strikes, and ineffective assistance of counsel.
Following an evidentiary hearing, the circuit court denied Lepsch's motion for a new trial. Lepsch appealed, unsuccessfully. He argued that the administration of the oath to the jury venire by the clerk of the circuit court in the jury assembly room, outside of his presence, violated his constitutional rights. He also argued that he was denied his Sixth Amendment right to an improper jury because the circuit court seated jurors who were both subjectively and objectively biased.
The Court of Appeals disagreed.
In appealing to the Supreme Court, Lepsch continues to argue that the prospective jurors were sworn in improperly. He also argues that “[f]or each of the nine (9) jurors which Lepsch claims were not impartial, the proper 6th Amendment inquiry” – which he says is required by Patton v. Yount, 467 U.S. 1025 (1984) – called for the circuit court to “examine what each juror said during voir dire and determine if the juror specifically swore that he could 1) set aside his opinion and 2) decide the case on the evidence.” Not doing so, Lepsch claims, was in conflict with decisions such as Patton and Oswald v. Bertrand, 249 F. Supp. 2d 1078 (E.D. Wis. 2003).
A decision in this case could help clarify the standards for evaluating a juror's impartiality and for administering the oath to prospective jurors.
The decision will likely come in several months.
News 19 has a crew at the hearing in Madison and will bring you live reports at 5, 6 and 10 pm.