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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, clear and true’ under all the circumstances.”Id. , ¶24 (citation omitted). Thus, the appearance of partiality constitutes objective bias when a reasonable person could question the court’s impartiality based on the court’s statements. Id.,¶26; Rochelt, 165 Wis.  2d at 378. The second form of objective bias occurs where “there are objective facts demonstrating … the trial judge in fact treated [the defendant] unfairly.”State v. McBride, 187 Wis.  2d 409, 416, 523 N.W.2d 106 (Ct. App. 1994) (citation and internal quotation omitted). Goodson argues both forms of objective bias are present here.

 

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