Graham Stowe was found NGI in 2005 and committed to the Department of Health and Family Services for 39 years and 6 months. Between 2007 and 2019, Stowe filed 10 petitions for conditional release. The same circuit court judge who committed Stowe in 2005 has presided over every subsequent proceeding. After five prior appeals, the court of appeals now agrees with Stowe that the circuit court was objectively biased at his 2019 conditional release hearing based on a totality of comments that demonstrate a “serious risk of actual bias.” As a result, the court reverses the circuit court and remands the case for a new conditional release hearing before a different judge. (Opinion, ¶2).
While an “impartial judge is fundamental to our notion of due process,” courts “presume that a judge has acted fairly, impartially, and without bias.” (¶23). To overcome this presumption, a party must demonstrate the existence of bias by a preponderance of the evidence. Unless the judge admits they have personal doubts about their own impartiality (subjective bias), objective bias requires the moving party to prove there is a “serious risk of actual bias” based on objective and reasonable perceptions. (¶23). A judge who has prejudged the facts or the outcome of a dispute cannot render a decision that comports with due process.
For example, a judge can’t express that they want a defendant’s probation extended prior to presiding over the defendant’s extension hearing. State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114. Likewise, a judge can’t tell a defendant that they will receive a specific sentence if they get revoked from probation. State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385. That being said, in practice and according to the case law, successfully proving a judge is objectively biased in extremely rare.
In Stowe’s case, the court of appeals holds that the circuit court’s comments “might not be as unequivocal and direct” as the comments at issue in Gudgeon and Goodson,” but “based on the totality and the circumstances of the court’s statements – that a reasonable person would determine that there was a serious risk that the court prejudged Stowe’s petition for conditional release before the evidentiary hearing.” (¶27).
The circuit court’s comments at issue here occurred prior to the evidentiary hearing on Stowe’s petition for conditional release at which the state maintained the burden to prove that Stowe was dangerous. See Wis. Stat. § 971.17(4); see also State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995). Further, Stowe was unrepresented at the hearing and many of the comments the court takes issue with were made, at least arguably, to ensure that Stowe understood the potential disadvantages of self-representation and properly waived his right to counsel. (¶¶27-28).
However, in cautioning Stowe about the perils of self-representation, the court’s focus shifted to the substantive deficiencies with his petition for release from Mendota Mental Health Institute. First, the court told Stowe that while he appeared to have made “good progress,” that he hadn’t “had enough time to really get the full benefit of that, or to at least be able to convey that benefit.” Second, the court stated that it presumed the doctor’s testimony would be consistent with the report he filed opposing Stowe’s release. Third, after Stowe reaffirmed his desire to proceed without counsel, the court stressed the “more time and additional treatment might be beneficial.” Fourth, while “encouraging Stowe to take more time before advancing his petition, the court openly discussed the prospect of Stowe’s petition being denied.” Fifth, the court “expressed doubt about Stowe’s ability to present his Catholic faith as a relevant factor to the court’s inquiry regarding dangerousness.” Sixth, the court made several comments indicating that Stowe’s petition was not developed and offering Stowe a chance to delay the hearing so as to allow Stowe more time to develop grounds for his conditional release. (¶27-30). The court’s fact section quotes the circuit court at length in order to avoid taking the court’s comments out of context and the analysis goes into further detail about why the comments demonstrate prejudgment as opposed to cautionary advice about self-representation.
Specifically, the court notes that the timing of the circuit court’s comments is important: “Neither the State nor Stowe had begun presenting any evidence or arguing the merits of Stowe’s petition,” which the court found “especially disconcerting,” given that the state carried the burden of proof as to Stowe’s current dangerousness. (¶32). Also, the court notes that the circuit court’s comments after denying Stowe’s petition for release revealed that the earlier comments “conveyed substantive concerns and opinions about the merits of Stowe’s petition before any evidence had been presented.” (¶33).
Stowe’s ability to establish objective bias is especially impressive based on the court of appeals’ cautionary comments that “nothing in the record suggests the circuit court had any ill intent or motive” and that the court’s comments “show a genuine interest in helping Stowe improve his likelihood of conditional release.” (¶43). Unlike Gudgeon and Goodson, on which Stowe and the court of appeals relied, the circuit court’s comments were more nuanced and made within an otherwise valid colloquy about Stowe’s right to counsel. The decision is a strong reminder that objective bias claims need not rely on personal animosity or hostility between the court and a party. Instead, objective bias exists where a reasonable person would conclude that the judge has prejudged the outcome of a factual dispute.