On Point blog, page 5 of 6
Andrew Suh v. Pierce, 7th Cir No. 09-3946, 1/18/11
Habeas – Procedural Default
“Adequate presentation of a claim requires a petitioner to present both the operative facts and the legal principles that control each claim to the state judiciary.” (Quoting, Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007).) Suh procedurally defaulted his theory of recusal based on the appearance of bias, where it was different from the theory of actual bias he presented to the state court.
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.
Recusal – Judicial Bias: Objective Bias, Generally
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶9 Objective bias can exist in two situations. The first is where there is the appearance of bias, Gudgeon, 295 Wis. 2d 189, ¶¶23-24. “[T]he appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to ‘hold the balance nice,
Recusal – Judicial Bias – Prejudgment of Issue: Effectuated Threat to Impose Maximum upon Revocation
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The reconfinement judge should have recused himself, given that at original disposition he threatened to impose the maximum if the defendant was returned to court on revocation; State v. Gudgeon, 2006 WI App 143, deemed controlling:
¶12 The same analysis applies here.
Judge – Bias – Ex Parte Contact with Prosecutor
State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, affirmed, 2008 WI 67, ¶48 n. 7 (reconsideration denied, 2008 WI 118)
Pro se
Issue/Holding: ¶13 n. 4:
We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing,
Judicial Bias — Generally, Structural Error
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶10 A biased tribunal, like the lack of counsel, constitutes a “structural error.” See id. at 8; Franklin v. McCaughtry, 398 F.3d 955, 961 (7th Cir. 2005); State v. Carprue,
Recusal – Judicial Bias: Prejudgment of Issue
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether, given the trial judge’s statement at sentencing that defendant’s counsel had in fact provided competent representation, established prejudgment of the issue such that recusal was required for the subsequent postconviction assertion of ineffective assistance of counsel.
Holding:
¶35 … (A)bsent a pervasive and perverse animus,
Judicial Bias — Test — Objective Bias
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶21 The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”).
Judicial Bias — Prejudgment of Issue in Controversy
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.
Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”),