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Defense win: Drug court judge turned sentencing judge was objectively biased

State v. Jason A. Marcotte, 2020 WI App 28; case activity (including briefs)

After Marcotte was terminated from drug court and his probation revoked, he was sentenced by the same judge who’d presided over his case in drug court. Under the facts in this case, both the judge’s comments during drug court and his dual role as drug court judge and sentencing judge demonstrate he was objectively biased and thus violated Marcotte’s right to an impartial judge.

First, the judge’s comments during drug court proceedings show objective bias  because, based on those comments, a reasonable person would conclude the judge had prejudged Marcotte’s sentence in the event he failed the drug court treatment program:

¶19     As noted above, at various times before Marcotte’s sentencing after revocation hearing, Judge Morrison communicated to Marcotte that he would be sentenced to prison if he did not succeed in drug court. In particular, Judge Morrison expressly told Marcotte during one drug court hearing that if he was discharged from the drug court program, he would “get sentenced and … go to Dodge [Correctional Institution].” Judge Morrison also warned Marcotte during his original sentencing hearing [when probation was ordered] that if he did not succeed in drug court, there would be “no mercy” when Marcotte returned for sentencing after revocation. Judge Morrison followed through on that promise at Marcotte’s sentencing after revocation hearing, imposing a sentence longer than those requested by both the State and the DOC. Moreover, Judge Morrison stated during the sentencing after revocation hearing that because Marcotte had failed in drug court, he had “no choice” but to sentence him to prison. A reasonable person would interpret these comments to mean that Judge Morrison had decided long before Marcotte’s sentencing after revocation hearing that he would impose a prison sentence if Marcotte was terminated from drug court.

This result flows from a thorough, straightforward application of the now well-established law on the appearance of bias, in particular State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, and State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385. The court applies those cases, along with the recent unpublished decision in State v. Lamb, No. 2017AP1430-CR, unpublished slip. op. (WI App Sept. 25, 2018), and rejects the state’s attempts to distinguish them. (¶¶20-27).

The court of appeals goes on to find that in this case the judge’s dual role as drug court judge and sentencing judge adds to the appearance of bias, for several reasons:

  • A treatment court judge might become personally invested in the defendant’s success, and the defendant’s failure might lead to the judge to be personally frustrated with the defendant and thus to be unable to remain impartial. Some of the judge’s comments show just that problem. (¶¶29-30).
  • When a treatment court judge makes statements about what sentence will be imposed if the person fails, a reasonable person could perceive the judge will have an institutional interest in following through on the statements, lest the judge undermine his or her credibility with others in treatment court. (¶31).
  • As drug court judge, the judge in this case received “significant amounts of ex parte information about drug court participants that no other judge would have access to when sentencing” because this county’s drug court included closed staffings at which Marcotte wasn’t present. Because the judge acknowledged and referred to having a deeper well of knowledge about Marcotte from drug court, a reasonable person could conclude the judge based his sentence at least in part on information to which Marcotte had no opportunity to correct, explain, or otherwise respond. (¶¶32-34).

As the court also notes, best-practices guides for treatment courts recommend that a treatment court judge not sentence a person who was in treatment court, or to at least take some precautions to avoid the appearance of bias (e.g., as the court points out more than once, impose and stay a sentence and place the person on probation before referring the person to treatment court). (¶¶37-39). But, the court expressly notes, “we do not hold that a judge who has presided over drug court proceedings involving a particular defendant can never sentence that defendant after the revocation of his or her probation. Whether a judge is objectively biased under those circumstances must be determined on a case-by-case basis.” (¶40).

If you are facing sentencing after revocation before the judge who handled your client’s case in treatment court, you should read this decision carefully and assess, in consultation with your client, whether to file a motion to recuse the judge on due process grounds. And if you’re in a county with one or a few judges, don’t be deterred simply because it might result in the court having to bring in a visiting judge, for “ultimately, maintaining the integrity of the judicial system is more important than the minor inconvenience that may arise from a judicial substitution.” (¶43).


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