In a motion to suppress Ordonia-Roman’s confession, trial counsel alleged that during his interrogation Ordonia-Roman was without a required medication and was not allowed to take the medication. At the suppression hearing, however, Ordonia-Roman testified he had been prescribed the medication, but had not filled the prescription and was not taking the medication. The trial court believed Ordonia-Roman’s testimony and confronted trial counsel about the factual misstatement in the motion. Ordonia-Roman argues trial counsel took the court to be attacking him personally and thus defended himself by blaming Ordonia-Roman for being dishonest with him, creating a conflict of interest that deprived Ordonia-Roman of the effective assistance of counsel. (¶¶5-11, 14-15).
The court of appeals rejects Ordonia-Roman’s reading of the record (¶¶17-20) and comes to a very different conclusion about what it shows: “Properly read, the transcript shows that counsel suggested to the court that counsel himself erred in alleging that Ordonia-Roman was not ‘allowed’ to take blood pressure medication during the interrogations and that the allegation in the suppression motion was based on a misunderstanding between counsel and Ordonia-Roman, and not because Ordonia-Roman ‘behaved dishonestly.’” (¶20). While at least one of his comments “certainly does not put [trial] counsel in a flattering light” (¶19), the court finds no conflict and no basis for an ineffective assistance claim. (¶¶17, 22).
The court of appeals’ hostility to Ordonia-Roman’s argument is remarkable given that the state concedes trial counsel had a conflict of interest. The state’s brief agrees trial counsel had a personal interest in trying to excuse the false allegation he made in the suppression motion, that his personal interest conflicted with his professional obligation to defend the credibility of Ordonia-Roman, and that trial counsel “performed deficiently by attempting to shift the blame for his false allegation to Ordonia-Roman by suggesting that Ordonia-Roman gave him the false information asserted in his allegation.” (State’s brief, at 7).
In addition, the trial court did not have to recuse itself on the grounds that a reasonable, objective observer could have questioned the judge’s ability to be impartial to defense counsel and to Ordonia-Roman. State v. Gudgeon, 2006 WI App 143, ¶24, 295 Wis. 2d 189, 720 N.W.2d 114 (there is an appearance of bias “whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to” remain impartial under the circumstances). The court of appeals concludes “[a] reasonable objective observer would understand that the judge reasonably perceived the suppression motion as misleading.” (¶27). And, because the court rejects the argument that trial counsel blamed Ordonia-Roman’s dishonesty for the false allegation in the suppression motion, it also rejects the claim that the exchanges between the trial court and trial counsel create the potential of partiality toward Ordonia-Roman. (¶28).
While hostility toward a defendant’s lawyer can translate into bias against the defendant, e.g., Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), the hostility has to be “severe,” State v. Hollingsworth, 160 Wis. 2d 883, 894, 467 N.W.2d 555 (Ct. App. 1991). But even if the record here doesn’t establish the appearance of bias, the court incorrectly focuses its inquiry on whether a reasonable person would understand the judge reasonably perceived the motion to be misleading. The focus should be on whether a judge who has been misled by trial counsel can remain impartial toward the defendant.
Finally, the court rejects Ordonia-Roman’s argument that the trial court improperly kept him from questioning the detective about his initial denials that he committed the charged offenses and about the interrogation process, which Ordonia-Roman said pressured him into confessing. Any error was harmless: There is no reasonable probability a jury would have ignored the testimony of the victim and the detective, and Ordonia-Roman himself told the jury that he was interviewed by two detectives, that he told the first detective that he did not commit the charged crimes, and that he eventually confessed because the second detective made false promises to him. (¶¶36-41).