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TPR – Judicial Bias

Walworth County DH&HS v. Roberta J. W., 2010AP2248, District 2, 6/22/11

court of appeals decision (1-judge, not for publication); for Roberta J.W.: Lora B. Cerone, SPD, Madison Appellate, case activity

By his overweening involvement in the trial process, evincing his prejudgment of the case and asking “countless questions of the witnesses” – to an extent that the GAL objected that “the judge was abusing his function and was not being fair to Roberta -, the trial judge violated Roberta’s due process right to a neutral and impartial magistrate.

¶28      “[A] conviction should be reversed when the appellate court is satisfied from the record that the trial judge prejudged the case before hearing all the evidence.”  Cassiagnol, 420 F.2d at 878.

¶29      This court is so satisfied.

¶30      The County makes many arguments, none of which persuade us to affirm.  We note that its reliance on Carprue is misplaced.  If anything, Carprue aids Roberta’s argument.  There, our supreme court engaged in a comprehensive discussion explaining why the practice of judicial interrogation is a dangerous one which will lead to a new trial being granted if the trial judge abuses this discretion.  See Carprue, 274 Wis. 2d. 656, ¶43, and see generally id., ¶¶41-47.  Further, while the supreme court in Carprue did not grant a new trial, its decision was predicated on its finding that Carprue waived the claim of judicial bias because he had failed to timely object.  Id., ¶¶46-47, 69.  In fact the supreme court specifically explained that “if Carprue had objected, [the judge] would likely have altered her conduct or taken the opportunity to more fully explain her actions….  Since Carprue did not object, any error by the court went unchecked.”  Id, ¶45.

¶31      Unlike in Carprue, here, we do not have waiver.  The GAL properly raised an objection regarding judicial bias.  And we agree with the trial judge that the issue of judicial bias need not have been raised again by defense counsel to preserve it.

Read the opinion for the details. Overriding concern: the trial judge didn’t merely hijack the case, he indicated before its conclusion “that he had already decided the case adversely to Roberta,” ¶33. The opinion collects cases on the issue of prejudgment and judicial over-involvement.

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