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Defense win! Sentencing judge was objectively biased

State v. Emerson D. Lamb, 2017AP1430-CR, District 3, 9/25/18 (not recommended for publication); case activity (including briefs)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

This bias claim looks to the court’s acts or remarks and their context, so some discussion of the facts is necessary.

Lamb pleaded no contest to battery by a prisoner. Lamb appeared at the scheduled sentencing hearing, but his lawyer said Lamb had asked about moving to withdraw his plea; also, Lamb hadn’t yet met with or provided information to the PSI writer. During the discussion about rescheduling the sentencing hearing, Lamb complained about being wrongfully charged, called the DA a “criminal,” and left the courtroom. The court issued a bench warrant. (¶¶2-3).

By the time of the rescheduled sentencing hearing Lamb was in custody. Lamb apologized for leaving the courtroom at the previous hearing and told the judge he had decided not to withdraw his plea, as the state would be recommending probation and the parties agreed to forgo the PSI. (¶¶4-5). The judge then engaged Lamb in a colloquy about his decision not to withdraw his plea, asking Lamb why he didn’t want to do that anymore. Lamb replied:

THE DEFENDANT: Because I feel like I could potentially benefit from, you know, maybe being on probation. Also, there’s the possibility of leaving today, so I just —
THE COURT: Not really. Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?
THE DEFENDANT: Yes.
THE COURT: Okay. …. So I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?
THE DEFENDANT: Yes.

(¶5 (emphasis added)). After hearing sentencing arguments recommending probation, the judge sentenced Lamb to prison. (¶6).

A defendant is deprived of the right to an impartial judge when the circumstances of the case demonstrate a “serious risk” that the average judge would be tempted “not to
hold the balance nice, clear and true.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884-85 (2009); State v. Herrmann, 2015 WI 84, ¶¶30-38, 364 Wis. 2d 336, 867 N.W.2d 772. The court of appeals looks for instruction to two Wisconsin cases that have applied this standard, State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, and State v. Goodson, 2009 WI App 107, ¶7, 320 Wis. 2d 166, 771 N.W.2d 385 (which involved the same judge who sentenced Lamb). (¶¶10-11).

¶14     Here, [as in Gudgeon and Goodson,] we similarly conclude Judge McGinnis’s comments reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence. Both Lamb and the judge were aware that the State and Lamb’s attorney would be recommending probation for the battery charge. While Judge 2McGinnis was inquiring of Lamb whether he was making a knowing and intelligent decision to forgo his plea withdrawal request, Lamb stated he was comfortable doing so in part because there was a “possibility of leaving today.” Judge McGinnis immediately interjected, said, “Not really,” and advised Lamb not to have any “false hopes.” He then repeatedly told Lamb his release to probation was “probably not going to happen.”

¶15      The timing of this exchange is important to our conclusion. Although Judge McGinnis was aware of the joint probation recommendation, his statements occurred prior to his hearing any formal sentencing arguments from the parties. His statements were also made prior to his inquiring whether Lamb wished to exercise his statutory right of allocution. …. The sentencing arguments in this case were particularly important because the parties had agreed to forgo a PSI, which would have contained essential sentencing information about the offense and Lamb’s character, as well as an additional sentencing recommendation.

¶16     The apparent prejudgment of Lamb’s sentence is especially problematic because of the manner in which circuit courts are required to conduct sentencing proceedings. A circuit court must sentence the defendant to the minimum amount of custody or confinement necessary to achieve the court’s articulated sentencing objectives. State v. Gallion, 2004 WI 42, ¶¶23-24, 270 Wis. 2d 535, 678 N.W.2d 197. Probation is the first alternative courts should consider at sentencing, and the court must set forth its reasoning for a more severe sentence after considering the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs. Id., ¶¶23-25. Judge McGinnis’s statements in response to Lamb’s oral contemplation of the “possibility” of probation failed to account for any of these sentencing factors and objectively show a “serious risk” that he had already made up his mind about what kind of sentence Lamb would receive.

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