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Judge’s comments at start of restitution hearing showed objective bias

State v. Deshawn J. Driver, 2018AP870-CR, District 1, 2/26/19 (not recommended for publication); case activity (including briefs)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

The state defends the judge on the ground that a person with a criminal conviction is less credible than a person without a criminal record, § 906.09 and Nicholas v. State, 49 Wis. 2d 683, 688, 183 N.W.2d 11 (1971). Sure; but as Driver points out, while a witness’s criminal record is a relevant consideration, it doesn’t justify “dispensing with the testimony altogether and making a credibility finding based on the witness’s criminal record alone.” And that’s just what happened here, as the judge mades his credibility prejudgment before any witness testified. (¶¶19-20).

The court of appeals sides with Driver:

¶21     It is well established that criminal convictions presumptively weigh against a witness’s credibility, but we agree with Driver that a trial court cannot, consistent with due process guarantees, reach a credibility determination before it hears witnesses testify. This principle is supported by the holdings in other cases in which this court has examined claims that a trial court has prejudged a matter.

¶22     In State v. Gudgeon, this court examined whether a defendant had received due process where the judge had, in advance of the revocation hearing, written a note on a proposal from the probation agent saying, “I want his probation extended.” Id., 2006 WI App 143, ¶¶2-3, 295 Wis. 2d 189, 720 N.W.2d 114. This court concluded, “The ordinary reasonable person would discern a great risk that the trial court in this case had already made up its mind to extend probation long before the extension hearing took place. Further, nothing in the transcript of the extension hearing would dispel these concerns.” Id., ¶26.

¶23     Similarly, in [State v.] Goodson, this court addressed a claim of a due process violation based on an allegedly impartial judge. Id., [2019 WI App 107,] 320 Wis. 2d 166, ¶1[, 771 N.W.2d 385]. We concluded that the trial court’s statements prior to a reconfinement hearing telling Goodson what the hearing’s outcome would be “violated Goodson’s due process right to be sentenced by an impartial judge.” Id., ¶18. Our conclusion was based on the principle that “‘when a judge has prejudged … the outcome,’ the decision maker cannot render a decision that comports with due process.” Id., ¶17 (citing Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir. 2005)).

¶24     The record undisputedly shows that the restitution court made its statements about credibility determinations before any witness testified. As in Goodson and Gudgeon, the trial court’s statements gave the appearance that it had already prejudged the matter and created an appearance of bias that “reveals a great risk of actual bias.” See [State v.] Herrmann, [2015 WI 84,] 364 Wis. 2d 336, ¶3[, 867 N.W.2d 772]. Driver is therefore entitled to a restitution hearing before a different judge.

Citing a 1992 court of appeals case, the state also claims Driver forfeited his claim by not objecting at the restitution hearing. But this is contrary to (and so implicitly overruled by) State v. Carprue, 2004 WI 111, 57-59, 274 Wis. 2d 656, 683 N.W.2d 31, which held that a biased judge is a structural error that can’t be waived. The court of appeals dodges the dispute by choosing to review the claim even if it’s forfeited. (¶¶14-18). Word to the wise: As strong as Carprue is on this point, object and ask the judge to get off the case when objective bias becomes apparent.

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