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Judicial Bias – Test – Structural Error

Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir 2005), granting habeas relief in unpublished opinion of Wis COA

Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 Wis. 2d 373, 477 N.W.2d 659 (Ct. App. 1991)) is inconsistent with controlling Supreme Court precedent:

… First, … the Supreme Court has decided that both actual bias and the appearance of bias violate due process principles. … Second, where there is a structural error, such as judicial bias, harmless error analysis is irrelevant.

There’s more to this case, of course, but the abiding lesson is that Wisconsin may no longer be able to shrug off plausible claims of judicial bias simply on the judge’s say-so (which seems to be the unifying theme of our judicial-bias cases). Rather than dwell on the particular facts of this case – which, after all, are probably somewhat idiosyncratic and unlikely to recur – it’s probably more productive to extract the animating idea of this case: prejudgment is tantamount to bias. The court doesn’t put it quite in those terms, but that seems to be the thrust given the court’s comments:

~ This is powerful circumstantial evidence that Judge Schroeder had pre-judged Franklin’s case.~ The memorandum demonstrates that Judge Schroeder decided the issue of Franklin’s guilt long before trial. Therefore, the state appellate court unreasonably applied the Supreme Court’s bias rules to the facts of Franklin’s claim.

~ The problem arises when the judge has prejudged the facts or the outcome of the dispute before her. In those circumstances, the decisionmaker “cannot render a decision that comports with due process.”


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