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State v. Jesse Herrmann, 2013AP197-CR, petition for review granted 9/24/14

On review of a per curiam unpublished court of appeals decision; case activity

Issue (composed by On Point)

Did the circuit court violate Jesse Herrmann’s due process right to an impartial judge by exhibiting objective bias in sentencing Herrmann?

Herrmann was convicted of one count of homicide by intoxicated use of a vehicle, two counts of injury by intoxicated use of a vehicle, two counts of OWI causing injury, and one count of hit and run involving a death. At the start of the sentencing hearing the judge—apparently repeating information she’d disclosed before—said “[i]t’s not a secret that I lost a sister to a drunk driver in the summer of 1976.” (¶3). Herrmann and his lawyer said that had no problems or issues with this fact. But during her sentencing remarks, the judge explicitly referred to the death of her sister, saying, among other things, that the pain doesn’t disappear, though it lessens with time; that she was uniquely able to understand the pain of this victims; and that:

I have had the benefit of all those years since 1976 to understand that I have to make Mr. Herrmann pay, but that nothing I do to him will lessen that pain, and that if I don’t do more than just incarcerate Mr. Herrmann, if I don’t speak out on behalf of my community today, then this tragedy will continue to happen on our streets, and more families will suffer the way these families suffer today. (¶4).

The court of appeals rejected Herrmann’s claim that the judge was objectively biased under State v. Goodson, 2009 WI App 107, ¶9, 320 Wis. 2d 166, 771 N.W.2d 385, which recognized that objective judicial bias may appear in one of two alternative forms: the appearance of bias, that is, whether a reasonable person would question the judge’s impartiality based on the his or her statements; and actual bias. As to the appearance of bias, the court acknowledged it was “a close case,” but based on the entire sentencing proceeding it found the judge’s comments indistinguishable from other cases in which a judge expresses an understanding of the plight of victims of a crime. (¶¶9-10). As to actual bias, the court rejected Herrmann’s reliance on data presented by trial counsel regarding sentences in other homicide by intoxicated use of a vehicle cases because the information “is too vague and general to demonstrate that a defendant in Herrmann’s position would not receive a similar sentence but for a biased judge.” (¶7).

The supreme court has not addressed a biased judge claim head-on since Goodson was decided. Its last brush with the issue was State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, the infamous “baby mama” case, but the majority dodged the judicial bias issue by treating Harris’s challenge as an improper sentencing factor claim, id., ¶¶70-76 (Bradley, J., concurring). But the concurring justices in Harris found no objective bias, id., ¶¶107-13 (Bradley, J., concurring), and seemed to adopt a strict test very difficult to satisfy. (These and other aspects of Harris are dissected with verve here.) So even if a majority takes up the issue without recasting it as Harris did, Herrmann faces tough sledding.

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