Attorney calls for Gableman recusal in criminal cases

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A Milwaukee attorney is asking that Justice Michael J. Gableman recuse himself from all criminal cases.

Robert R. Henak alleges the actions of Gableman and his supporters during the justice’s 2008 campaign indicate a bias toward the “prosecutorial arm of state government” and preclude him from being able to impartially decide criminal cases that come to the court.

Specifically, Henak, of Henak Law Office S.C. in Milwaukee, filed a motion with the court on April 18 to have Gableman removed from the State v. Aaron Antonio Allen, which was granted review in March.

Henak was appointed by the court to represent Allen in his petition for review. In 1999 Allen was convicted in circuit court of armed robbery and possession of a firearm. He was sentenced to 37 years in prison.

“I am sure Justice Gableman doesn’t know Aaron Allen from Adam,” Henak said. “But no individual alleged to have committed a crime can feel reasonably that they will get a fair hearing before [the justice], based on his campaign and statements from those who supported his campaign.”

Appearance of Bias

In his motion, Henak suggested that Gableman’s campaign for the Supreme Court last year “relied on an agenda” of promoting the interests of the prosecution, while “denigrating” the legal rights of defendants and their counsel.

He referred to the “Headlines” section of Gableman’s campaign Web site in which six of seven captions highlighted the judge’s “handing out a lengthy sentence, denying a defendant’s motion or otherwise coming down hard against a defendant.”

Henak also said the $2.6 million spent by outside interest groups in support of Gableman reinforces the appearance of a bias against criminal defendants.

“No ethical lawyer would bring this motion against a sitting judge and claim bias unless they have the facts and the law to support it,” Henak said. “We have both the facts and the law here.”

Last October, the Wisconsin Judicial Commission (WJC) (http://www.wicourts.gov/about/committees/judicialcommission/index.htm) filed a complaint against Gableman for judicial misconduct based on a television advertisement the justice ran during his campaign. The matter is still pending a review before the Judicial Conduct Panel.

Gableman did not return phone calls seeking comment on the motion.

According to the motion, this is the first time the justice has been asked to recuse himself based on actions during his campaign.

In November, Gableman was asked to recuse himself from a civil case because attorneys for the defense happen to work for the same firm — Michael Best & Friedrich — that is partially representing the justice on the allegations of judicial misconduct.

At the request of the plaintiff’s attorneys in the case, Gableman recused himself.

Fuzzy Guidelines

But Henak’s request drew the ire of Wisconsin Attorney General J.B. Van Hollen, who in a statement to the Wisconsin Law Journal, said the motion “is an attack on our system of electing judges.”

Van Hollen added that during an election, judicial candidates are allowed to express their views, within the limits of the law, and Gableman’s actions in 2008 were no different than past years.

“This in no way disqualifies them [justices] from being fair and impartial in a specific case,” Van Hollen stated. “If this motion is successful, we can expect a torrent of similar motions against every judge — at every level — the end result being the people of this state will be denied the right to have cases heard by the judges they’ve elected.”

Van Hollen and Assistant Attorney General William L. Gansner, who is representing the state in Allen, opposed the motion asking the court to recuse Gableman from the case, in the event he decides not to step down himself.

Regardless of whether Gableman stays or goes on Allen, watchdog Michael McCabe said he expects more parties will ask for recusals, unless the current rules are revised.

“I think this was to be expected, because when any judicial candidate tries to curry favor with a particular voting constituency, they run a great risk that others will see them as biased on those issue, such as criminal cases,” said McCabe, executive director of the Wisconsin Democracy Campaign.

Two petitions seeking to refine recusal rules are pending in the state Supreme Court. The U.S. Supreme Court recently heard oral arguments in Caperton v. A.T. Massey Coal Company, Inc., dealing with campaign donations and recusal.

Marquette University Law School Professor Richard Esenberg said the Massey case and the issues raised by Henak differ, which is why the motion has little chance of success. “Massey involved expenditures by a litigant before the court,” Esenberg said. “Here we have a candidate’s expression of a ‘tough on crime’ philosophy and expenditures by groups who claimed to support that philosophy.”

Esenberg added that virtually all judicial candidates employ a “tough on crime” philosophy, including Chief Justice Shirley S. Abrahamson during her recent re-election campaign.

“If this motion is granted, then she — and virtually every other candidate who has ever run a contested race — should also be required to recuse themselves as well,” Esenberg said.