Outagamie County D.H. & H. S. v. Michael P., 2015AP845, 3/22/16, District 3 (i-judge opinion; ineligible for publication); case activity
A jury found grounds to terminate Michael P’s parental rights. He appealed and explained that during the County’s adverse examination of him, the trial judge repeatedly interrupted and instructed him to answer only the questions posed by the County. The judge, he claimed, displayed objective bias, thereby depriving him of an impartial tribunal. And his lawyer was ineffective for failing to object to the judge’s questions.
The court of appeals rejected Michael P’s judicial bias claim for these reasons:
¶11 . . . A judge is objectively biased if: (1) there are objective facts demonstrating the judge in fact treated a party unfairly, State v. Herrmann, 2015 WI 84, ¶27, 364 Wis. 2d 336, 867 N.W.2d 772; or (2) a reasonable person, taking into consideration human psychological tendencies and weaknesses, concludes the average judge could not be trusted to “hold the balance nice, clear and true” under all the circumstances, id., ¶32 (quoting Gudgeon, 295 Wis. 2d 189, ¶24).
¶12 Here, there was nothing in either the quantity or the quality of the circuit court’s questioning that reveals objective bias. A trial judge is permitted to interrogate witnesses, including those called by a party. See WIS. STAT. § 906.14(2). The judge also controls the mode and order of presenting evidence to ensure the fairness and reliability of the trial process, and he or she is tasked with preserving dignity, order and decorum in the courtroom. State v. Anthony, 2015 WI 20, ¶¶75-76, 80, 361 Wis. 2d 116, 860 N.W.2d 10, cert. denied, 136 S. Ct. 402 (2015). All of the circuit court’s interruptions and questions at issue in this case— which, contrary to Michael’s arguments, were relatively infrequent—were justified by one or more of these principles. They included the court’s efforts to have Michael answer the questions asked, rather than interposing his own objections or answering a different question, and to clarify confusing testimony.
As for the ineffective assistance of counsel claim, the court of appeals held that, for the reasons just noted, objections to the judge’s questions would have lacked merit. Furthermore, trial counsel had a strategic reason for not objecting–she didn’t want to draw more attention to Michael P’s conduct.
¶15 Trial counsel was aware the County would call Michael adversely, and she believed her client “came off as a jerk” in the documents and testimony she expected the County to introduce. She stated she “didn’t want the jurors to think that he was this jerk, this abrasive guy, this guy who’s always fighting against everyone. So we tried to prep him in a way that he would … show possibly this softer side.” This involved also preparing Michael for “questions that we can’t get around the State asking,” which questions counsel advised Michael he would need to answer. Trial counsel had further instructed Michael to leave it to his attorneys to correct the record during Michael’s case-in-chief. She also made clear “the last thing he absolutely wants to happen is for a judge to correct him or to have to sort of address his demeanor or lack of responses on the stand.” As trial counsel readily acknowledged, Michael did not follow these instructions at trial.