On Point

State v. Hou Erik Vang, 2010 WI App 118; for Vang: John L. Sesini; BiC; Resp.; Reply

¶1        Hou Vang appeals an order denying his motion to withdraw his no contest pleas to second-degree sexual assault of a child and felony bail jumping. Vang argues WIS. STAT. §§ 971.08(1)(c), (2)^[1] entitle him to withdraw his pleas because, although the circuit court provided the statutory deportation warning at his arraignment, it failed to give the warning at the plea hearing. We agree and reverse.

In other words, the mandatory caution about deportation must be given at the plea hearing; a warning given at some prior time, even if otherwise accurate, doesn’t comply with the statutory mandate on plea-taking. The court also reiterates the need to “state[] the deportation warning as prescribed by statute” ; the trial judge failed to do so in the precise terminology required, ¶15. And the court rejects, in no uncertain tones, the idea a defendant may waive this procedure:

¶14 In any case, we hold that, at the plea hearing, defendants may neither waive nor forfeit their right to plea withdrawal pursuant to WIS. STAT. § 971.08(2). Indeed, the State mischaracterizes the issue when it argues Vang waived his right to the warning. The duty set forth in WIS. STAT. § 971.08(1)(c) is imposed solely on the circuit court. A defendant’s action or inaction cannot alter that duty. Section 971.08(2) provides for a specific remedy when a defendant “later shows that the plea is likely to result in the defendant’s deportation ….” The statute anticipates that the motion to vacate the judgment and withdraw the plea will be submitted following a qualifying event in the future and reserves the right to defendants who demonstrate they have suffered the particular harm.

Interestingly, this does not appear to be a direct appeal. Vang filed his postconviction motion nearly 4 years after sentencing. The State doesn’t argue the nature of the relief mechanism, nor does the court discuss it. Vang doesn’t seem to be in custody under the sentence, which at first blush would throw him outside § 974.06 appeal, but perhaps he is in custody after all because he’s facing removal under the conviction (¶3). If that’s correct, then it would give the decision greater impact than the somewhat obvious conclusion that § 971.08(2) prescribes procedure at and not before the plea hearing.

State v. Wendy A. Brown, 2010 WI App 113; for Brown: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply

The significant risk of “serious property damage” underlying an NGI institutionalization-commitment, § 971.17(3)(a), doesn’t require physical damage to property; loss of money or goods — from identity theft in this instance — suffices:

¶13      The above definitions of property and damage are much broader than that which would be required to support Brown’s limited interpretation of property damage.  Property generally includes both tangible and intangible items, including land, goods, money, and information rights; while damage generally includes loss of, harm to, and reduction in value or usefulness of, property.  Thus, considered in isolation from the statute, property damage would generally be understood to include losses of money or goods typically suffered as the result of theft, burglary, and fraud—the types of conduct at issue in this case.

¶14      Additionally, while Brown stresses context in her argument, she entirely ignores the larger statutory context and manifest intent of the statute.  WISCONSIN STAT. § 971.17(3)(a) requires institutionalization if release of the person poses a sufficient risk of either bodily harm or serious property damage, and compels conditional release in the absence of such risks.  The clear purpose of the statute, then, is to protect the community, while imposing the least restrictive restraint of liberty consistent with that purpose.  The specific clause we are construing, however, pertains solely to the community protection component.

State v. Rashaad A. Imani, 2010 WI 66, reversing 2009 WI App 98;habeas relief granted 6/22/16; for Imani: Basil M. Loeb; BiC; Resp.; Reply

¶3   We conclude that the circuit court properly denied Imani’s motion to represent himself. First, we determine that Imani did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel, and (2) was unaware of the difficulties and disadvantages of self-representation. If any one of the four conditions prescribed in Klessig is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel. Second, we conclude that the circuit court’s determination that Imani was not competent to proceed pro se is supported by the facts in the record. Because Imani did not validly waive his right to counsel and was not competent to proceed pro se, the circuit court was required to prevent him from representing himself.

Criminal defendants have the constitutional right to represent themselves; surely, among a trial judge’s worst nightmares. Not merely the specter of someone gumming up the works, or speaking directly rather than through a mouthpiece to the jury, but the very decision itself: there is literally no margin for error, so that if the trial court wrongly denies self-representation, “structural” error is built into the result, ditto for wrongfully granting the request. As the court now puts it, a bit too blandly, “We, along with the United States Supreme Court, have often recognized the apparent tension between these two constitutional rights,” ¶21. And the court determines to end that tension, by severely limiting self-representation — not, to be sure, in rhetorical terms, but in pragmatic ones.

Back up a step: previously, State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), mandated trial courts to undertake a several-part inquiry, aimed at determining whether the defendant was knowingly, etc., waiving counsel and was competent to represent himself (¶23). In Imani’s instance, everyone agrees the trial judge short-circuited that inquiry (¶42). Instead:

¶9 The circuit court asked Imani how he is going to convince the court that he is competent to represent himself. Imani responded that he had been “working on” his case for 13 months, had completed the tenth grade, could read and write English, and reads at a college level. Imani also stated that he had appeared in court at least five times before in other cases, though admittedly always with counsel …

And that is largely it. The narrow question presented on review was whether, given the plainly defective colloquy, the proper remedy was retrospective hearing on validity of waiver, or outright grant of new trial. But the (4-3) majority expanded the issue and concluded that the truncated colloquy was close enough.

First, the circuit court’s conclusion that Imani’s articulated reasons “did not reflect a deliberate choice but instead were ‘episodic driven'” (whatever that might mean) supports the idea that Imani didn’t make “a deliberate choice to proceed without counsel” (¶¶27-30). The court of appeals peers closely into Imani’s mind and discerns not merely that his request to waive counsel was “impulsive[],” but was occasioned by counsel’s failure to win a suppression motion. Maybe so, but just why that made Imani incapable of making a deliberate choice to proceed without counsel is left unsaid. Odder still is the court’s separate conclusion that Imani was unaware of the risks of self-representation, no attempt being made here to summarize the court’s reasoning (¶¶31-32). It might be added, though, that maybe, just maybe, Imani didn’t demonstrate risk-awareness or deliberate decision-making precisely because the trial court inquiry was so abbreviated. But that really is the meta-message: keep the inquiry short, and soon as the trial court can remotely justify refusal to find waiver terminate the thing. The majority denies that this is what it is doing (“we strongly caution circuit courts … to engage … in the full colloquy,” ¶35), but its action speaks louder than these words. The dissent (the majority “dismantles Klessig‘s useful and clear bright-line rule,” ¶41) has it right.

And there is yet more to prove the point. The majority could, and should, have ended its analysis after drawing these conclusions, but it slogged on to the now-unnecessary question of Imani’s competence to represent himself. This, the majority says, is “uniquely” for the trial judge to decide, with the appellate court’s role reduced to seeing whether the trial judge’s competency determination is “totally unsupported” (¶37).

¶38 In this case, we conclude that the circuit court’s determination that Imani was not competent to proceed pro se is also supported by the facts in the record. The circuit court inquired into Imani’s level of education, his ability to read and write, and his experience with the legal system. Imani possessed only a tenth grade education and asserted, without more, that he read at a college level. As the circuit court correctly observed, Imani’s experience with the criminal court system was “observational,” as his court appearances always included the assistance of counsel. Considering all those factors, the circuit court determined that Imani did not possess the minimal competence necessary to conduct his own defense. We cannot conclude that the circuit court’s determination is “totally unsupported” by the record. Id

You don’t have to be a mentalist to see the majority as inviting trial judges to deny self-representation. If Imani wasn’t “competent” to represent himself then few if any indigent defendants (the crushing majority of criminal defendants) will be. Remarkably, as the dissent points out, the trial judge himself “did not make a determination as to Rashaad Imani’s competence” (¶74); the majority’s resolution of this non-issue is a bit of judicial activism.

A couple of final points. Wisconsin imposes a higher standard for waiver of counsel / self-representation than is required by the US Supreme Court, State v. Alan J. Ernst, 2005 WI 107 (our test for waiving counsel is based on the court’s superintending authority, not the 6^th amendment, and therefore survives less exacting requirements of Iowa v. Tovar, 541 U.S. 77 (2004), ¶¶14-21). You might also find interesting the discussion in Eddie L. Brooks v. McCaughtry, 380 F.3d 1009 (7th Cir. 2004) (“Wisconsin, as this case illustrates, has set a higher standard for waivers of the Faretta right than for competence to stand trial. … we do not think that Wisconsin’s approach violates the rule of Godinez.”). But, when if ever will “a higher standard” be deemed too high? We will see. (Other than, of course, waiver of counsel for purposes of interrogation; there, you won’t find the bar set terribly high even for 6th amendment purposes.) Keep in mind that we are not talking about the mentally ill, as to whom a higher standard is clearly sustainable, Indiana v. Edwards, 128 U.S. 2379 (2008) (“the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves”).

And separately, note the paternalism that informs Faretta itself (and repeated here, ¶21): “Save for ‘some rare instances,’ ‘[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.’ Faretta, 422 U.S. at 834.” Undeniable? Hardly. Erica J. Hashimoto studied the matter,”Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant,” and concluded:

This Article presents the results of the first comprehensive study of pro se felony defendants. The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants – nearly 80% – displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants.

Yes, well, the empirical data do cast in an interesting light the policy decision — for that is what it is — by this court to deter self-representation. Keep in mind, too, that “legitimate concerns about counsel” will hereafter be deemed “episodic driven” and “aggravation,” and thus contrary to a “deliberate choice.”

publication orders, 6/30/10

2008AP002929
2010 WI App 72 Wendy M. Day v. Allstate Indemnity Company

2009AP000463
2010 WI App 73 Karen Poston v. Andrea L. Burns

2009AP000757
2010 WI App 74 Peter H. and Barbara J. Steuck Living Trust v. Newell L. Easley

2009AP000760
2010 WI App 75 Cottonwood Financial, LTD v. Darcie Estes

2009AP000775
2010 WI App 76 E-Z Roll Off, LLC v. County of Oneida

2009AP000784 CR
2010 WI App 77 State v. David D. Ramage

2009AP001202
2010 WI App 78 Judith A. Ladwig v. Daniel A. Ladwig

2009AP001210 CR
2010 WI App 79 State v. Matthew C. Parmley

2009AP001559
2010 WI App 80 Peter S. Boerst v. Mark Henn

2009AP001990 CR
2010 WI App 81 State v. Brian K. Sowatzke

2009AP001997
2010 WI App 82 Jackson Co. DHHS v. Susan H.

2009AP002965
2010 WI App 83 Elias D. Pagoudis v. George J. Korkos, M.D.

Before Brown, Chm., Fine, Anderson, Brunner, and Dykman, JJ., Publication Committee.
The court having filed its opinion in each of the above-entitled appeals and the court having concluded pursuant to Wis. Stats. § 809.23 that the opinions should be published,
IT IS ORDERED that the opinion in each of the above-entitled appeals be published in the official reports.
Dated: 06-30-2010
By the Court
/S/DRS
David R. Schanker
Clerk of Court of Appeals
David R. Schanker
Clerk
WISCONSIN COURT OF APPEALS
OFFICE OF THE CLERK
110 E. Main Street, Suite 215
P.O. Box 1688
Madison, WI 53701-1688
Telephone: 608-266-1880
TTY: 800-947-3529
Fax: 608-267-0640
http://www.wicourts.gov
REPT-6 (03/2005) Order of Published Opinions Page 1 of 1

State v. Roy B. Ismert, No. 2009AP1971-CR, District IV, 7/1/10

court of appeals decision (1-judge; not for publication); for Ismert: Kristen D. Schipper; BiC; Resp.; Reply

The evidence was sufficient to support the obstructing element that Ismert knew the police officer had legal authority to stop, question and arrest him.

¶14 We conclude that Lossman and Grobstick are persuasive on the facts before us. Like the officer in Lossman, Officer Richardson testified that at the time of his contact with Ismert, he was operating a marked squad car. His official vehicle supports the finding that a reasonable person would believe the officer possessed the lawful authority to stop and question him or her. Ismert contends that since the jury was not told whether Richardson informed him of the existence of the arrest warrants at the initiation of their contact, the jury’s finding was unreasonable. Ismert argues that his false statements, coupled with the fact that he did not run away from the officer while he was in the restaurant, shows Ismert did not know Richardson had the lawful authority to arrest him. However, while this is one inference the jury may have drawn, it was not required to draw that inference. Ismert’s evasive conduct, like the conduct in Grobstick, could reasonably be interpreted as a method for preventing his lawful arrest.

The officer stopped Ismert (who then gave a false name) because of an outstanding arrest warrant. The court rejects Ismert’s argument that, in order to prove his knowledge of the officer’s lawful authority, the State had to prove Ismert’s knowledge the warrant was lawful, ¶15.

2010 WI 61 (Abrahamson, CJ, Bradley, Crooks, JJ); 2010 62 (Prosser, Roggensack, Ziegler, JJ); Judicial Conduct Panel Findings, etc.; WJC Brief; Resp.; WJC Reply

Judicial Discipline – Campaign-Related Misconduct

The court splits 3-3 on whether Justice Gableman’s infamous “loophole” ad violated the Judicial Code. The Chief, et al. (61 bloc), say it did:

We three, Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, conclude:

• Justice Gableman’s advertisement violated the first sentence of SCR 60.06(3)(c).

• The advertisement “misrepresent[ed] . . . [a] fact concerning . . . an opponent” and was made knowingly or with reckless disregard for truth or falsity.

• The First Amendment does not protect knowingly false statements.

…

Because of a deadlock, we three conclude that a remand to the Judicial Commission for a jury hearing is required.

As for the others (62 bloc):

¶53 We three justices have concluded that based on the undisputed facts before us, the Commission has failed to prove the allegations in its complaint by evidence that is clear, satisfactory and convincing as Wis. Stat. § 757.89 obligates the Commission to do.  When a party has not met its required burden of proof, dismissal of the complaint is required by law.  Wis. Stat. § 757.89; see Seraphine, 44 Wis. 2d at 65.

What now? The 61 bloc suggests (no position commands a majority so the court can’t exactly “order” anything) remand to the Judicial Commission for jury trial under Wis. Stat. § 757.87, ¶17; a court of appeals judge, selected by the chief judge, would preside, ¶20. But as the sharp-eyed Tom Foley discerns, it may well be too late (statutory procedure at least arguably requiring that the commission “request a jury hearing” before filing the petition, an event long-since passed). The Commission, though, has the benefit of crackerjack advice from Rob Henak how to try to break this impasse.

In the meantime, Justice Gableman’s lawyers say it’s time to declare victory and withdraw from the field of battle. “McLeod says the 3-3 split means the case is over because the Wisconsin Judicial Commission needed four justices to satisfy its burden of proof.” “‘When the prosecutor comes forward and wants to punish you, he’s got to get a majority vote for that. When he fails to do it, it means you are exonerated,’ said Gableman attorney James Bopp, Jr.” Is their confidence misplaced? We’ll see. But: exonerated? The Justice hasn’t been absolved of wrongdoing, he’s the beneficiary of a hung proceeding, if you care to put it in those terms; a stalemate. In some ways, an inconclusive ending only ensures on-going strife. Three Justices have accused a fourth of lying to win his seat, 2010 WI 61, ¶¶34, 48-52. The tie vote leaves the denunciation unresolved. And so it simply remains hanging, a toxic cloud over the court.

State v. Joshua D. Conger, 2010 WI 56, on certification; for Conger: Anthony L. O’Malley; Brief (State); Brief (Conger); Brief (Judge Grimm); Reply (Conger); Amicus (Prosecution Project, UW)

Plea Bargain – Rejection

A circuit court has post-arraignment authority to reject a proposed plea bargain that would result in amendment to the charge; State v. Kenyon, 85 Wis. 2d 36, 46-47, 270 N.W.2d 160 (1978), embellished and reaffirmed. The holding is efficiently summarized in the majority’s concluding paragraphs:

¶48 The first two questions presented by this case are answered by Wis. Stat. §  971.29 (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court’s inherent authority to reject a plea that is not in the public interest. Thus, a circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest. That review is analogous to the court’s independent determination that a factual basis exists for the plea and its independent determination pursuant to Wis. Stat. § 971.08(1) that the plea is made knowingly, intelligently, and voluntarily; such independent determinations are safeguards built into our system to protect the integrity of the plea process. When a court determines independently whether a plea is in the public interest, it is no more a reflection on the prosecutor’s integrity or judgment than when it determines independently that a factual basis supports the plea.

¶49 As for the factors a court may consider when it makes that independent determination, we reiterate, as other courts have done, that the public interest is a consideration that is not capable of precise outlines. Accordingly, the factors that a court may weigh when defining the public interest involved will vary from case to case. One appropriate factor among many may well be the viewpoint of law enforcement; a court’s consideration of that factor in its analysis does not automatically invalidate its ultimate decision with regard to the plea.

Brief background: Conger was charged with possession with intent to deliver, a felony. The DA agreed to a plea bargain modifying the charge to several misdemeanors. But the judge, who went so far as to solicit the view of the police drug unit (!) on the plea bargain (surprise! they’re generally opposed to felony-to-misdemeanor reductions) wouldn’t play ball. Having read this far, you know that the supreme court says he didn’t have to. On the one hand, judicial power to reject a plea bargain has been assumed all along, and in that sense the court doesn’t do more than acknowledge caselaw that’s been on the books for decades. On the other, this is the first opinion that purports to describe, and perhaps delimit, that authority. Let’s separate out a few of the larger points.

Timing. The prosecutor has nearly unfettered discretion as to whether to commence prosecution, ¶¶19-20 (“weighty and difficult decisions early in a prosecution … are left to the sole discretion of the prosecutor”).  Tension arises when the court’s jurisdiction is invoked, but when is that? Prior caselaw indicated that judicial discretion kicks in upon the very commencement of the prosecution, ¶22, but the holding today works a change, explicitly acknowledging “that the prosecutor’s unchecked discretion stops at the point of arraignment” under § 971.29, id. The concurrence removes any doubt on this point: “An underlying premise of Wis. Stat. § 971.29, which the majority identifies, is that the circuit court retains authority to approve or disapprove amendments, limited by Wis. Stat. § 971.29(1), which allows amendments without leave of the court when they are brought ‘prior to arraignment,'” ¶91. The majority doesn’t exactly explain this result, but it can only be that the prior caselaw described inherent judicial authority which has now been narrowly circumscribed legislatively. What this should mean, then, is that pre-arraignment negotiations are immune from judicial oversight. This isn’t to say that such things as a proper factual basis won’t get in the way, only that the before arraignment the judge doesn’t get to pass judgment on the plea agreement.

Review. Don’t count on an appellate court to bail you out if the judge rejects your plea agreement post-arraignment. The court makes it clear that the decision to reject a plea bargain is a discretionary one, therefore reviewed deferentially, ¶14. The majority puts it bluntly: “If the court considered the relevant facts and made no mistake of law, we will affirm,” ¶28. More need not be said.

Factors. A plea bargain may be rejected if, in the judge’s eyes, it fails to “serve the public interest,” ¶3. The court acknowledges this standard to be a “broad” one (hopelessly squishy might be more accurate; the court itself “emphasize(s) that the evaluation process is more of an art than a science,” ¶35). And the court musters a number of factors informing the art of rejecting a plea bargain, ¶¶29-36. They will not be repeated here, except in two respects, one intriguing, the other vexing.

• Prosecutorial weight. How much weight should the judge give the prosecutor’s decision to ratify the plea agreement? The Chief, concurring, explains that “the majority stresses the significant weight a circuit court should give to the prosecutor’s recommendations as encompassed in a plea agreement,” ¶62. This explication is helpful because the majority is a bit less than explicit, but the concurrence is undoubtedly correct in its assessment.

• Police input. This is a real head-scratcher. The majority says that the trial court clearly intended to reject the agreement before seeking police input, ¶42. Why, then, even reach the issue? Why not wait till a case actually presented the problem on its facts? But reach the issue the court did, and its entirely avoidable discussion is deeply problematic. Enough so to warrant separate treatment, immediately below.

One troubling aspect of the decision is the almost off-handed way the court upholds police input on whether the plea agreement is in the “public interest,” ¶¶37-41. The court poses the right question (“was the investigating officer in effect an agent of the state”) but reaches the wrong conclusion. Or, rather, doesn’t even bother trying to answer the question, except implicitly through the result of upholding “consideration of law enforcement’s views” (which the court in its very next breath informs us wasn’t really a consideration after all). Pity. Fact is, the court has on a number of occasions recognized that the investigating officers in a given case are in effect agents of the prosecutor, State v. Media DeLao, 2002 WI 49, ¶24, and cites. Maybe the “drug unit” whose opinion was sought had no role in investigating Conger’s case. But if that’s so, then it becomes harder to see why they get to weigh in on something they don’t really know about. And if they did investigate Conger, then why weren’t they agents? Are police investigators prosecutorial agents for purposes of prosecuting the case but not for stymying its resolution? A bit of a conundrum. And for better or worse we’re not quite done.

In the fourth amendment context at least, the Supreme Court has long recognized the virtue of “requiring that … inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 13-14 (1948). Well, that “often competitive enterprise” now may inform the awesome judicial decision of how to resolve a case. More: if that competition was sufficient for the Court to stand up and take notice some decades ago, consider the problem now. “U.S. Attorney General Eric Holder today announced the award of more than $5 million in FY 2009 funds for the State of Wisconsin to maintain or increase public safety in the state.” Guess what? Some of that money goes to “allocate resources to multi jurisdictional drug enforcement task forces.” Now, it’s at least possible that the more cases that get resolved as felonies instead of misdemeanors impacts funding. And if that’s so, then whose interest is the drug unit really advancing when it expresses general opposition to clearing misdemeanors instead of felonies? We’ll leave it there for the time being. But keep in mind otherwise that the court simply doesn’t explain why a local drug unit may speak in the “public interest,” which means that no limits have been set either on just who may give input. Let your imagination be your guide. No reason, for example, any 501(c)(3) charitable organization can’t weigh in in favor of the plea bargain.

Judicial participation in the plea bargain. It’s off-limits, State v. Corey D. Williams, 2003 WI App 116, but the court apparently sees rejection of a plea bargain as compatible with that prohibition. Maybe, but the line is becoming awfully blurred. A judge may express “inten[t] to exceed a sentencing recommendation in a plea agreement and offer[] the opportunity of plea withdrawal,” State v. Miguel E. Marinez, Jr., 2008 WI App 105; a form of post-plea judicial rejection really. And now we have pre-plea rejection. It is something of a fiction to say that the judge is a non-participant in this process. But a process it is, and for better or worse, the process is more defined today than it was yesterday. Some judges are philosophically opposed altogether to plea bargaining. E.g., State v. Windom, 169 Wis.2d 341, 354, 485 N.W.2d 832 (Ct. App. 1992), conc. op. (“by weakening deterrence, the practice encourages criminality and, accordingly, contributes to the influx of criminals that clog our courts”); “Echoes of a Muted Trumpet” (“Although much of the time plea bargaining gives defendants great deals, letting them escape just punishment for many or most of their crimes, there is another side to plea bargaining that is less well-known — extortion.”). If nothing else, a fundamental premise of their objection — judicial oversight of plea bargaining — has been greatly strengthened. We will just have to see over time whether the net effect of this strengthening is an emboldened form of oversight that limits the practice of plea bargaining.

Recusal – Judge as Party

A judge’s appearance as a party in a case over which he presides requires recusal. The trial judge in this case was named by the court of appeals as “intervenor-respondent,” in order to secure adversarial argument on the order appealed from his court (the defendant and State essentially agreeing the order should be reversed). This isn’t enough to make the judge a party, thus isn’t enough in and of itself to necessitate his recusal on remand. However, the record on this potential issue is undeveloped and the court directs that recusal be taken up on remand, ¶¶44-47.

Sounds pretty obscure and let’s hope it stays that way. Judges have been known to seek counsel to argue in favor of the judge’s order on appeal, especially if they’re dissatisfied with how the AG or DA is arguing the case. Hasn’t happened often, but it has happened. Not in this case, though, where the court of appeal itself orchestrated the trial judge’s intervention. That alone was enough to give the court pause, and should in turn give a trial judge second and third thoughts about engaging counsel to argue the case on appeal.