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Not funny, but not judicial bias, either

State v. Justin M. Church, 2021AP751-CR, District 3, 6/1/22 (not recommended for publication); case activity (including briefs)

At a pretrial hearing the circuit court made what the court of appeals characterized as an “ill-advised and troubling” attempt at humor (¶26), but it didn’t demonstrate that the circuit court prejudged the sentence it was going to impose or otherwise demonstrate a serious risk of actual bias.

Church was charged with obstructing and possession of methamphetamine. The latter charge was based on the meth found in a single syringe in Church’s pocket. At a pretrial hearing during which the parties discussed and scheduled a plea hearing in the case, the following exchange occurred:

[Defense Counsel]: And I note, again, this case is regarding a syringe that tested positive for methamphetamine.


[Defense Counsel]: The offense possession of meth was a syringe that tested positive for methamphetamine.

[The State]: Sounds like possession to me.

THE COURT: Sound like prison, agree, [State]?

(General laughter.)

[The State]: Absolutely someone is going to go.

Church eventually pled to the possession charge and the court imposed the prison sentence recommended by the state. (¶¶2-5).

Church filed a postconviction motion seeking resentencing before a different judge. He alleged the circuit court’s statement at the pretrial hearing—“sound[s] like prison”—and its following through on that statement at sentencing showed prejudgment and thus objective bias. The circuit court denied the motion, saying its comment was a “sarcastic statement” or a “joke,” as recognized by those in the courtroom, who laughed because they understood it wasn’t a promise that Church was going to prison.” (¶¶6-7).

The due process right to an impartial judge is violated when the judge is either actually biased or “objectively” biased—that is, when objective and reasonable perceptions of the judge’s words and actions create the appearance of a serious risk of actual bias or prejudgment. “[I]t is the exceptional case with ‘extreme facts’ which rises to the level of a ‘serious risk of actual bias.’” Miller v. Carroll, 2020 WI 56, ¶24, 392 Wis. 2d 49, 944 N.W.2d 542 (quoted source omitted).

Church makes an objective bias claim, arguing a reasonable person would question the judge’s partiality the pretrial comment and subsequent imposition of a prison sentence. He relied on cases in which a judge’s comments about what he or she wanted or would do at sentencing (or a sentence-related hearing) showed objective bias—State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114; State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385; State v. Lamb, No. 2017AP1430-CR, unpublished slip op. ¶11 (WI App Sept. 25, 2018); State v. Marcotte, 2020 WI App 28, 392 Wis. 2d 183, 943 N.W.2d 911.

The court of appeals concludes the circumstances of this case are different:

¶19     …[W]e conclude that the nature of the circuit court’s statements and the context in which they were made do not reveal a serious risk of actual bias. The common element in each of the cases discussed above was the court’s express and unequivocal statement of either its desired outcome, as in Gudgeon, or an affirmation of what would happen, as in Goodson, Lamb, and Marcotte, that led to our conclusions that the court had prejudged the sentence. That common element is missing here.

¶20     We agree with the State that the circuit court’s statement that “possession” of methamphetamine “[s]ound[s] like prison” was at most the court expressing an opinion that possession could lead to prison, not that the court had clearly made up its mind. See Marcotte, 392 Wis. 2d 183, ¶24. This comment was not a clear expression that the court wanted or had decided on a particular outcome. Without more, the court’s isolated comment would not lead a reasonable person to believe that the court had prejudged the sentence.

¶21     The context in which the circuit court’s comment was made also informs our decision. The record reflects that the discussion followed the defense attorney’s statement that “this case is regarding a syringe that tested positive for methamphetamine,” perhaps foreshadowing counsel’s later argument at sentencing that from the defense perspective, the circumstances of the case were not particularly aggravating. The State then responded, “Sounds like possession to me.” The court’s comment followed: “Sound[s] like prison, agree, [State]?” The exchange resulted in laughter and no objection by defense counsel. As the court stated at the postconviction motion hearing, the comment could appropriately be labeled as a “sarcastic statement” or a “joke,” made at the expense of the State. Or, as argued by the State, the comment could be viewed as made at the expense of defense counsel. As the court noted, the resulting laughter suggested that others recognized the statement as a sarcastic comment or a joke.

The court of appeals agrees there is no exception for humor where judicial bias is concerned, review of a bias claim is based on “objective and reasonable perceptions,” and the court concludes a reasonable person would not view a single statement that spurred laughter in the courtroom to be one that the circuit court meant as a genuine prejudgment of Church’s sentence. (¶22). It also helps that, at the sentencing hearing itself, which happened months after the judge’s attempt to be funny, the court considered the proper sentencing factors and the recommendations and arguments of the parties and gave a reasoned explanation of its sentencing decision. (¶¶24-25).

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