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Recusal – Judicial Bias: Prejudgment of Issue

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether, given the trial judge’s statement at sentencing that defendant’s counsel had in fact provided competent representation, established prejudgment of the issue such that recusal was required for the subsequent postconviction assertion of ineffective assistance of counsel.


¶35      … (A)bsent a pervasive and perverse animus, which Rodriguez does not allege, a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge’s judicial responsibilities. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”). The trial court did not err in declining to recuse itself from consideration of Rodriguez’s postconviction motion.

You wouldn’t quite know it from this passage, but the standard for recusal is in a bit of flux. Some of the more important recent cases are Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005), and State v. Justin D. Gudgeon, 2006 WI App 143, both of which may be read for the idea that prejudgment of an issue establishes a disqualifying appearance of bias. Yet, the court of appeals is also correct that an opinion derived through a judicial proceeding can’t ordinarily support disqualification. Does this mean that there’s simply an irreconcilable tension between these competing principles? Maybe. But you don’t have to go that far in this instance, either: you can argue that the trial judge had no business making a pronouncement on Rodriguez’s representation; there’s a very long history now in this state of saying that ineffective-assistance can’t be determined on the record; that’s why there must be a Machner hearing. The trial judge, in other words, simply wasn’t entitled to draw an opinion on the basis of the proceedings and a Litecky-type principle therefore shouldn’t be invoked.


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