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Defense win! Judge’s statements during trial showed objective bias against defendant

State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged the case. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline for filing a response brief.

The State cited Stingle for discharging fill material into various wetlands on his property without a permit in violation of §281.36(3b).  Stingle argued that the areas in question did not qualify as wetlands.

While the State was questioning its last witness, the following exchange between defense counsel and Judge McGinnis occurred:

THE COURT: My question was why doesn’t your client just take whatever it is, the fill, and remove it and clean it up the way they want it to be cleaned up? Maybe you have answered it. He’s just set on the position that he doesn’t have to. He doesn’t have to comply and it’s not a wetland?

[DEFENSE COUNSEL]: Right. He doesn’t believe he’s violated the law.


[DEFENSE COUNSEL]: If you determine he violated the
law, he will obviously remove the fill.

THE COURT: Yeah. So he’s just that stubborn. Opinion, ¶38.

The trial proceeded. Stingle presented his defense, the State put on rebuttal testimony, and the court concluded that Stingle had violated §281.36(3b). Then the judge said:

I have been trying to focus on or think about the last 15 minutes or so, you know, what’s the consequence? I have looked at the statute, as I understand it, 281.36(14). If I am correct, it can be a forfeiture of not less than $100 nor more than $10,000. That’s the range that we have, right? Opinion, ¶42. (Emphasis supplied).

Applying Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, ¶24, 944 N.W.2d 542 (click here) and Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009), the court of appeals held that Stingle established a serious risk of actual bias based on objective and reasonable perceptions. It said: “When the record indicates that a judge ‘has prejudged the facts or the outcome of the dispute,’ the judge ‘cannot render a decision that comports with due process.'” (citing Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir. 2005) and State v. Goodson, 2009 WI App 107, ¶17, 320 Wis. 2d 166, 771 N.W.2d 385).

The judge’s first comment occurred before Stingle had even started to present his case. It suggested that the judge believed Stingle should remove the fill and was being “stubborn” by refusing to do so and forcing the parties to go to trial. Opinion, ¶41.

The timing of the judge’s second comment revealed that he was contemplating Stingle’s penalty while Stingle was still testifying in his own case and before the close of evidence. Opinion, ¶42. The court of appeals held that together the two comments overcame the general presumption that the judge was unbiased.

Note: The court of appeals also reversed Judge McGinnis for actual bias in Goodson.

Stingle asked the court of appeals to sanction the State because it neglected to file a response brief, was deemed delinquent, and only then moved for and received multiple long extensions. The court of appeals declined to sanction the State, but it did give a stern warning:

¶48 Given that we granted the State’s untimely request for an extension of the time to file its response brief, we decline to sanction the State at this juncture for failing to file its brief before the original filing deadline elapsed. We caution the State, however, that in future cases, if it believes it cannot comply with a filing deadline, it should request an extension before that deadline expires, as all litigants are required to do. The State should not assume that, in the future, we will necessarily grant untimely extension requests. Moreover, the State should be advised that while we have chosen not to impose sanctions in this case, future violations of the Rules of Appellate Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).




{ 1 comment… add one }
  • Peter Heyne August 5, 2020, 12:19 pm

    From the delinquent State’s brief: “The State Carried It’s [sic] Burden Of Proof” (p. 3). And then later, “The State has met it’s [sic] burden” (p. 14).
    To this former grammar teacher, that’s nail on a chalkboard. To Weird Al, it’s [= it is] a Word Crime; please give the apostrophe its [=possessive] proper due. See 1:25 into the song

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