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Judicial bias claim forfeited due to lack of postdisposition motion

State v. Benjamin J. Klapps, 2019AP1753-CR & 2019AP1754-CR, District 2, 12/23/20 (recommended for publication); case activity (including briefs)

The circuit court granted the state’s petition to revoke Klapps’s conditional release under § 971.17(3)(e), citing in particular the report of a prior examiner who didn’t testify at the revocation hearing and whose report wasn’t entered into evidence. (¶¶2-13). Klapps argued the trial judge had prejudged his case based on the previously filed report, and therefore his due process right to an impartial judge was violated. But Klapps didn’t object to the court’s use of the report at the revocation hearing and didn’t bring a postdisposition motion raising his bias claim; instead, he argued the right to an impartial judge is a structural error that can’t be forfeited. The court of appeals rejects this reasoning, holding a postdispistion motion was required under § 971.17(7m); thus, the bias claim is forfeited. (¶¶15-32). While the court of appeals can address the issue under its discretionary power to reverse in the interests of justice, it finds absolutely no basis for doing that here. (¶¶33-45).

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