The Jury System From the Perspective of a Lawyer Picked for Jury Duty

By: Erik M. Gustafson, von Briesen & Roper, s.c.

At last April’s WDC Spring Conference, Heather Nelson presented a panel of jurors who sat on a trial in which she was involved earlier in the year. This panel provided interesting insight on the jury system from the perspective of “normal people” (i.e., non‑lawyers).

On February 16 and 17, 2026, I was summoned for jury duty in Milwaukee County. This provided me with a perspective of juries in the 21st Century from the perspective of a lawyer. While my coverage practice has taken me into many a courtroom, my time in courtrooms consists of scheduling conferences and motion hearings, not juries. If memory serves, this was the first time I was in a courtroom for jury selection since I was a circuit court intern during my 3L year.

I.              Jury Assembly Room

Pursuant to the summons, I first reported to the jury assembly room at 8:00 a.m. on Monday the 16th. Upon checking in, I found that a number of early arrivers had beat me to all the best seats. Nonetheless, I was able to find a seat with a table where I could start getting to work while I awaited further instruction. Somewhere around 8:30 a.m., a video created by the Director of State Courts Office played, featuring former Chief Justice Roggensack and former Milwaukee County Chief Judge Maxine White, along with a number of other judges throughout the state. The video provided a general overview of the jury system and jury service. 

After the video, a representative with Versiti Blood Center of Wisconsin came on screen to announce that Versiti holds a blood drive for prospective jurors every week in the courthouse, and he invited any interested jurors to come find him. I found this to be an effective coordination as the Milwaukee County Courts have a large group of captive people who might be interested in going to a cooler (by temperature) area of the courthouse for a time. Though I was eligible to donate blood at this time, I decided that wisdom dictated getting to work and billing as much as I could from the courthouse. That work, however, did not last long. Shortly after this video concluded, court staff came over the PA system to announce the first set of jurors. I was part of the thirty selected for this first case. 

Upon going to the marked areas of the floor for jurors going to a courtroom, I immediately sensed that this would be a civil jury because a law clerk was handling the jury. My suspicion gained some support when we went to the fourth floor of the courthouse, which I recalled as being the floor I most commonly visited for hearings in civil matters I was arguing. This was quickly confirmed in the courtroom, presided over by Judge Reyna Morales.

II.            The First Jury Selection Process

Upon entering the courtroom, I quickly noted the plaintiff’s table had two attorneys with a client-looking person at the front table, and another person at the rear table. The defense table had a single person at it. When Judge Morales read the caption of the case, I came to the conclusion that this was likely an uninsured/underinsured motorist dispute because the same insurance company was listed as an involuntary plaintiff and a defendant. The Court began with a standard set of questions that anyone who has visited the Milwaukee County Courthouse has likely seen: Name, city of residence, occupation, marital status, and hobbies. All thirty members of the panel answered these questions going down the line. Among the interesting people on the panel were two Milwaukee Brewers staffers, and a retired attorney.

Plaintiff’s counsel, Allan Foeckler of Cannon & Dunphy, began his voir dire. Attorney Foeckler asked a number of questions about experiences with car accidents and insurance companies, all very expected questions. 

Attorney Foeckler’s questioning made clear that the primary dispute here was damages, with the insurance company relying on a records review IME. He asked many questions that got around the point to whether a doctor who is providing an opinion on a person should actually meet the person. The general consensus of the jury pool was “yes.”

Defense counsel asked the group about believing a treating physician who says that a person is fully healed years before a lawsuit comes around. Attorney Foeckler objected to this line of questioning as getting into the facts of the case too much; this surprised me because it seemed to be only a slight deviation from the “hypotheticals” that Attorney Foeckler presented to the panel. Judge Morales sustained the objections, and defense counsel instead pivoted his questioning to asking if people can keep an open mind and see the evidence before judging whether the insurance company or the insurance company’s doctor was in the wrong. 

Voir dire ended right about at lunch, so Judge Morales released the jurors for lunch while the attorneys considered strikes and selected the final jury. Thus, upon returning from lunch, Judge Morales quickly announced that the jury had been selected and announced the names of those who would stay. Not surprisingly, I was not selected for that jury. I suspected that I was out as soon as Attorney Foeckler learned that I was an insurer-side coverage attorney. I thought that I could’ve been fair in a valuation claim, thought I might have struggled if the case included a bad faith claim—something that was not clear from jury selection. 

At this point, those who were not selected for the panel in that case were instructed to return to the jury assembly room. I was candidly not sure if my service was complete having gone through jury selection, but I quickly found it was not.

III.          Between Cases

Upon returning to the JAR, after some tables opened up, I was able to work for a short time before my name was again called. I quickly inferred that this was going to be a criminal case because a deputy was now in charge of marshalling the jury, and we headed toward the safety building. A handful of people who were in the pool for Judge Morales’ courtroom were again in this pool.

IV.          The Second Jury Selection

We walked toward the Safety Building, confirming this was going to be a criminal case. We ended up in Judge Katie Kegel’s courtroom. As in Judge Morales’s courtroom, Judge Kegel asked a number of standard questions, though the list was slightly different than the civil courtroom in that it omitted discussion of hobbies and placed questions in a slightly different order. Judge Kegel also asked many questions related to the process to ensure that everyone would treat the defendant fairly and not make any assumptions based on his prosecution. Naturally, when my turn came, and I stated that I was a lawyer, Judge Kegel asked for further details about my work and my employer. Both Judge Kegel and the attorneys asked questions of me to nail down my experience in criminal matters. I confirmed that my only interaction with criminal law was in my Wisconsin Supreme Court clerkship; all my legal work has been in the judiciary or in the insurance industry.

The case involved two related charges, felon in possession of a firearm and bail jumping for possessing a firearm. The prosecutor’s questioning focused on thoughts toward police and guns. The most interesting question he asked was if anyone was a member of the NRA, which no one was.

Defense counsel’s questioning was far shorter, primarily focusing on the rights of the accused and guns. His questioning was aimed more at finding people who had a particularly unfavorable view of guns, which many on the panel did. 

By the end of voir dire, I had the suspicion that I might end up on this jury panel based on the number of people who claimed to have scheduling conflicts and who had strong opinions about the police and/or guns. After the attorneys finalized jury selection during the afternoon break, I learned that my prediction was correct: I was one of the fourteen jurors selected to go through trial.

Jury selection ended around 4:45p.m. on Monday. We were informed that, by local rule, all court business must end at 5:00 p.m. Those who were not selected were released to grab their belongings and leave, while those selected received a few more instructions before being sent away with instructions to provide contact information to the deputy who had been in charge of the jury. When I gave him my phone number, the deputy was shocked that a lawyer actually got picked for a jury. 

Judge Kegel directed us to return by 8:45 a.m. the next morning so that trial could begin by 9:00 a.m..

V.            The Trial

Thirteen of fourteen jurors appeared Tuesday morning—one apparently called in sick. During opening statements, we learned a little more about the case. The charges arose out of the same incident in which the State alleged that the defendant possessed a firearm outside his house during a shooting in the summer of 2025. The prosecutor led us to believe that the only real question for both counts is whether he could prove beyond a reasonable doubt that the defendant possessed a firearm because the other elements were easily proven. In what became a trend for the trial, defense counsel waived his right to an opening. 

The prosecutor then began with his witnesses. First up was a third-party witness who happened to be in the area when he heard gunfire erupt. He took a photo of someone who he thought was part of it, who he identified as the defendant. At least to my eyes, I was not so sure that the photo shown to the jury (via screen only) was actually the defendant, based primarily on dramatically different hairstyles. This witness nonetheless identified the defendant as a person who he saw involved and was excused after no more than fifteen minutes of testimony. 

The prosecution then called a detective to the stand, and this questioning was primarily focused on setting foundation for security camera footage from a nearby park. The cameras did show a person getting out of a pickup truck with an arm pointed as though to be pointing a firearm at another group of individuals. Shortly thereafter, persons playing basketball at the park began running from the area. Because the focus of the cameras was on the park, the person getting out of the pickup truck was in the background, so the video was not particularly clear at that distance. 

In an attempt to persuade the jury that the person seen on video was the defendant, the prosecution called a different detective who had conducted a videotaped interview of the defendant. In this first interview, the defendant described being in a work truck similar to the one seen on video and describing his clothes for the day as matching what was seen in the person on the video. However, he steadfastly denied having a gun, readily acknowledging that he knew he was not allowed to possess a firearm. 

He had a different detective then testify concerning a third interview he conducted with the defendant. In this interview, the defendant told the same story at first, before admitting to possessing a .22 caliber pistol. He stated in this interview that he fired it only once, in the air, to help disperse matters. We learned through these interviews that the defendant was at his girlfriend’s house, where he often resided, with the children he had with this girlfriend. The other group that came to the house with the intention of shooting (and presumably killing) the inhabitants, were a woman with whom the defendant had a prior relationship, and who had given birth to a few more of the defendant’s children. Thus, the defendant’s story ultimately made sense in that he was attempting to keep the peace between two factions of his own family to avoid seeing any of his children seriously injured or killed. 

By this point, the prosecution’s theory was coming together. The prosecution had entered into evidence through a detective court records showing that the defendant had been convicted of felony operating a vehicle without consent in 2003, and he had been released on bail in a previous matter with one of the conditions being no possession of a firearm, and no further violation of the law. As the prosecutor promised during opening statements, the only real question was whether the defendant possessed a firearm as alleged. Based on what we had seen thus far, the answer appeared to be yes, though I, at least, still had some questions about the prosecutor’s case.

In one of the final sets of testimony for the day, the prosecutor recalled one of the detectives primarily to ask if Milwaukee Police found any .22 casings at the scene. To my surprise, the detective answered that he was unaware of any .22 casings. Based on opening and other testimony, I was of the impression that police found a .22 shell in between two of the houses, on its own. This presented a potential problem for the prosecution because there was now no direct corroborating evidence for the confession showing that the defendant possessed a firearm. At most, the state had shown that the defendant confessed to possessing a firearm and that his story concerning the events of the day were a general match to the video. At least in my mind, defense counsel had a real opportunity to secure an acquittal if he could provide a reasonable basis for the jury to disbelieve the confession. 

Defense counsel, however, did not call any witnesses (including his own client, who exercised his right to stay silent), and in fact did not extensively cross-examine many of the state’s witnesses. Further, I thought there were many opportunities for defense counsel to object to leading questions by the prosecutor or testimony without foundation, though I could understand in the moment why defense counsel would not object because it was unlikely to get him anywhere as all the objectionable questions could have been cured. 

This trend continued in closing arguments. The prosecutor gave a closing that was essentially as expected based on the evidence. Defense counsel gave a closing argument, but it was short and candidly not satisfying. Defense counsel made some reference to the figure in the video not being entirely perceptible as his client. He barely acknowledged the confession, questioning whether it really should count, but not giving any compelling reason to disbelieve it.

VI.          Deliberations

Jury instructions ended around 4:00 p.m. The jury recalled that court activities had to end at 5:00 p.m. To no one’s surprise, upon entering the jury room for deliberations, I was quickly selected as the foreperson. I thought the most efficient way to go about this was to start with the elements of each crime that appeared easy: that the defendant was previously convicted of a felony (for purposes of a felon in possession count), and that the defendant was subject to conditions of bail that prohibited possession of a firearm (for purposes of bail jumping). Everyone quickly agreed that the state proved its burden on these elements. 

Discussions on the question of whether the defendant possessed a firearm were more lively. A number of jurors were quick to believe guilt based on his confession. They did not see any reason why he would have given a false confession to the police. Another group of jurors was a little more skeptical because they could see an analytical path to acquittal if the defendant had admitted to possessing the .22 in order to protect one of his children who in fact had possessed that firearm and (perhaps) fired a warning shot at some point. 

This latter group was also somewhat concerned about timelines. They were ready and willing to believe beyond a reasonable doubt that the defendant possessed a firearm at some point during the summer of 2025, but they were more hesitant to reach that conclusion as to the specific date alleged. Thus, at approximately 4:30 p.m., I sent a series of three interrelated questions to the Court concerning whether the jury had to unanimously agree that he possessed a firearm on the date alleged, what “on or about” the date alleged in the Information meant, and what the verdict should be if the panel all agreed that the defendant possessed a firearm at some point in the summer of 2025, but were less than unanimous as to the specific date alleged.

After about fifteen minutes, we began to wonder if asking these questions would backfire because we did not have to return the next day just to deliberate for a short period of time. While we were waiting, we discussed the third element of the bail jumping charge, which was that the defendant intentionally violated the terms of bail. The jury unanimously agreed that, if he possessed a firearm, he did so intentionally. 

At 4:45 p.m., we received a written response from Judge Kegel. The response was, candidly, not very useful, though I was not overly surprised. Essentially, the Court directed us to read “on or about” in a normal, rational way. With this instruction, we resumed discussion about whether the defendant possessed a firearm. After a few minutes of discussion, the panel unanimously agreed that the State had carried its burden to prove that he had. Thus, I signed the proper verdict forms and sent a message to the Court that the verdict was ready. 

A number of members of the jury appeared in agreement with my thoughts, which was that neither side did a particularly great job. We were not entirely sure based on the video and other evidence presented that the figure in the video was the defendant. At the same time, we were not given any reason by the defense not to believe the confession. Thus, with the confession and the surrounding evidence, we saw no reasonable doubt for the conclusion that the defendant had possessed a firearm. 

After sending the message that the jury reached a verdict, the deputy came to take us into the courtroom. Consistent with standard practice, the Court read the two verdict forms. Both the prosecution and the defense asked to poll the jury after reading the verdicts, and the jury all agreed that the verdicts read were the verdicts for which that jury had voted. The Court then thanked us, informed us that we could now talk to anybody about any aspect of the trial that we wished, and sent us into the jury room. I stayed in the jury room briefly because Judge Kegel indicated she would be coming back. One other juror stayed, as well. I asked if it was common in the criminal realm for attorneys to reach out to jurors. Judge Kegel indicated that it was not. Earlier—I believe while waiting for our questions to be answered—it was mentioned to the jurors that attorneys will sometimes reach out to jurors, and while they are under no obligation to speak to the attorney, attorneys often find it quite valuable if they do. Judge Kegel, though, confirmed my suspicion that such post-trial conversations with jurors are less common in the criminal realm because the attorneys simply do not have the time to do so. 

In walking out of the courtroom, I saw defense counsel and asked if he would like to speak. He readily agreed. I shared feedback that the jury was generally open to acquitting the defendant, but we would have needed a reason not to believe the confession. Defense counsel intimated that he understood that concern but was unable to come up with a good reason not to believe the confession. He explained that his client took the matter to trial based on an evidentiary issue that could have gotten the confession excluded from trial. However, Judge Kegel had denied his motion to exclude the confession, so he felt like he needed to go through trial in order to preserve the issue for a potential future appeal.

This made sense to me, and quite frankly comforted me about the process. Though I am not a criminal lawyer, the legal doctrine recited, if it in fact exists as described by defense counsel, made sense as a defense strategy, especially with multiple jurors expressing that the State would not have met its burden of proof without the confession. This gave me some comfort that defense counsel was not deficient. Further, the prosecutor’s case made more sense in that he likely saw no need to waste too much time with cumulative evidence in light of the confession. (I never saw the prosecutor, and he has not reached out in the four weeks between trial and writing of this article.)

VII.        Conclusion

Overall, I came away comforted in our system. I thought Judge Kegel did a very nice job presiding over the trial in a fair and efficient manner. Though I had some questions about both sides’ legal strategy during the trial, I came away with an appreciation and understanding that both sides did what made the most sense for their respective clients. This highlighted how trials are standard fare for criminal lawyers, in contrast to most civil attorneys for whom a trial would be the highlight of the year. 

I also came away with a greater appreciation for juries themselves. The panel really was a cross-section of young to old, blue collar to white collar, etc. All members of the jury put legitimate thought and concern into the deliberation process. 

My biggest takeaway from this trial is the value in acknowledging and addressing the obvious holes in your case. While I am not sure what explanation defense counsel could have given that would have been satisfying (and consistent with the evidence—arguing that the defendant gave a false confession in order to protect a family member likely would have required some evidence that he actually did so), a stronger attempt might have resulted in an acquittal. I suspect that the jury was closer to an acquittal than anyone else in the courtroom realized. 

Author Biography: 

Erik M. Gustafson is an Income Shareholder at von Briesen & Roper, s.c., in the Milwaukee office. His practice focuses on insurance coverage (both first- and third-party) and appeals. Erik graduated from Marquette University Law School, magna cum laude, in 2017, where he was Technology Editor of the Marquette Law Review and earned a certificate in litigation practice. Prior to joining von Briesen, Erik was a law clerk at the Wisconsin Supreme Court and associate at a Milwaukee law firm.