O.G. appealed a juvenile court order waiving him into adult court. He argued that the judge was objectively biased and requested a new waiver hearing before a different judge. His appendix included 3 affidavits alleging that during a break in the waiver hearing, the judge received a call about another child’s case, became upset, started swearing, and said he was “so done” and couldn’t “wait to get out of the juvenile system.” The judge showed a noticeable change in behavior. Then he waived O.G. into adult court.
The court of appeals did not address the merits of the judicial bias claim. It affirmed the waiver because the affidavits in O.G.’s appendix were not part of the record. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992)(appellate court may not consider documents outside the record). However, it must have had concerns because it helpfully added:
We note, however, that nothing in our decision today addresses whether O.G. may
now file a motion with the supporting affidavits in the appropriate court. See State v. Vairin , 2002 WI 96, 255 Wis. 2d 137, 647 N.W.2d 208. Fn2
Fn.2 In State v. Vairin M., our supreme court held that a juvenile may file a motion for reconsideration of a waiver order in the juvenile court until a criminal complaint is filed. Id., 2002 WI 96, ¶¶35-39, 255 Wis. 2d 137, 647 N.W.2d 208. If a criminal complaint has been filed, a juvenile with “compelling new grounds” may file a motion with the adult court. Id., ¶¶54-55.