On Point: A. Judicial bias

State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)

The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.

Miller v. Carroll, 2020 WI 56, 6/16/20, affirming a published court of appeals opinion, 2017AP2132, case activity (including briefs)

You’ve surely read about this case in NY Times, the Journal Sentinel, on Wisbar.org or on On Point here or here. A judge’s Facebook friendship with one of the litigants in a child custody case before him created a serious risk of actual bias and resulted in a due process violation. Justice A.W. Bradley filed an interesting concurrence arguing that this decision is at odds with  State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175, which readers may recall, concerned a motion to disqualify then Justice Roggensack.

State v. Jason A. Marcotte, 2020 WI App 28; case activity (including briefs)

After Marcotte was terminated from drug court and his probation revoked, he was sentenced by the same judge who’d presided over his case in drug court. Under the facts in this case, both the judge’s comments during drug court and his dual role as drug court judge and sentencing judge demonstrate he was objectively biased and thus violated Marcotte’s right to an impartial judge.

United States v. James Atwood, No. 18-2113 (7th Cir. Oct. 24, 2019)

Atwood is entitled to a new sentencing hearing because the judge in his case was communicating ex parte with the prosecutor’s office about other cases, and the content of the correspondence invited doubt about the judge’s impartiality in proceedings involving the prosecutor’s office.

Timothy W. Miller v. Angela L. Carroll, petition to review a published court of appeals decision granted 8/14/19; case activity (including briefs)

Issues (based on Carroll’s Petition for Review)

1. Does a judge’s acceptance of one party’s Facebook “friend” request by itself overcome the presumption that a judge is fair, impartial, and capable of ignoring any biasing influences, given the absence of any allegation of subjective bias or of facts showing the judge treated the other party unfairly, and when there were no electronic social media (“ESM”) communications between the judge and the party regarding the merits of the case?
2. Does the fact a party “liked” a judge’s Facebook posts unrelated to the pending litigation or commented on a Facebook post unrelated to the pending litigation constitute an ex parte communication between a party and a judge?

In re Judicial Disciplinary Proceedings Against Piontek, 2019 WI 51, 5/21/19; case activity

The supreme court suspends Judge Michael Piontek from office for five days for “obviously unethical” and “clearly improper” misconduct in two criminal cases.

State v. Deshawn J. Driver, 2018AP870-CR, District 1, 2/26/19 (not recommended for publication); case activity (including briefs)

At the start of Driver’s restitution hearing, before hearing testimony from any witness, the judge told defense counsel on the record that the victim’s word “is more credible than your client’s words[.]” Later in the hearing, when defense counsel told the judge that Driver and his co-defendant did not see “a lot” of the items the victim claimed were in the stolen car, the trial court said it would “take that without their testimony” and added, “That’s why I didn’t give them a chance to say it.” Does that show “objective bias”? You bet it does.

Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10, petition for review granted, 8/14/19, affirmed, 2020 WI 56; case activity (including briefs)

After a contested hearing between Miller and Carroll about custody and physical placement of their child, and before issuing a decision, the circuit judge accepted a Facebook “friend” request from Carroll. Miller argued the circuit court demonstrated objective bias by doing so. The court of appeals agrees.

State v. Emerson D. Lamb, 2017AP1430-CR, District 3, 9/25/18 (not recommended for publication); case activity (including briefs)

The sentencing judge made comments at Lamb’s sentencing before it had heard any sentencing arguments from the parties, and those comments showed a serious risk that the court had prejudged Lamb’s sentence. Accordingly, the judge was objectively biased and Lamb is entitled to a new sentencing hearing before a different judge.

Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).