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Substitution bill would put onus on attorneys

Attorney John Birdsall stands along the Milwaukee River recently. Birdsall has concerns about a bill working through the state Capitol that would require defense attorneys disclose in writing why a judge should be bumped from a case. (File photo by Kevin Harnack)

Criminal defense lawyer John Birdsall says he has substituted hundreds of judges without explanation.

The attorney with Birdsall Law Offices SC, Milwaukee, doesn’t have to justify his decisions, which is fortunate, he said, because the judges probably wouldn’t like what he had to say.

“The reasons,” Birdsall said, “are never positive.”

But a bill working through the state Capitol would require defense attorneys disclose in writing why a judge should be bumped from a case. The state Senate’s version of the bill passed in June, and the Assembly version is awaiting a vote.

If the bill passes, Birdsall said, he still would never put on paper that he thinks, for instance, a judge is unfit to rule on a case. That kind of on-the-record statement, he said, could come back to bite him on another case.

“I would write something innocuous,” Birdsall said. “If the judge didn’t have to approve it, I would say my reason for substitution is because the sky is blue.”

The bill would not let judges approve or reject a reason for substitution in criminal cases. Rather, the bill is designed to add transparency and reduce the number of substitution requests, said state Rep. Andre Jacque, R-Bellevue, who wrote the Assembly bill.

“People will substitute less,” he said, “when they don’t have a legitimate case for doing so.”

Jacque’s bill lists advisory criteria under which a judge can be substituted. Those guidelines include instances when a judge is related to a party in the case, the judge is a witness or the defense has reason to believe the judge cannot rule fairly in the case.

Still, Jacque said, the bill would not mandate attorneys only follow the guidelines, meaning a lawyer still could offer any reason for a substitution. But, he said, at least those attorneys would have to publicly stand behind their reasons.

Whatever the reasons are, Jacque said, they give judges a chance to better understand a substitution.

“If they feel their name is being impugned, they have the ability to address it,” he said. “Hopefully, they would dispel any public concerns or misconceptions that might arise, and changes then could lead to fewer substitutions in the future.”

Prior to 1971, attorneys had to file affidavits of prejudice with the court to show cause for substitution. Birdsall said that often resulted in contentious motions for recusal and angst among judges and attorneys.

“That’s what we would be heading to again with this proposal,” he said. “I think the detriment with this is it pits defense lawyers and prosecutors against the judiciary. I don’t see how that benefits anybody.”

Milwaukee County Circuit Court Judge Dennis Cimpl, who was a defense lawyer before taking the bench, said he doesn’t want to return to the grudges created by the pre-1971 system.

He said the current system rightfully gives lawyers an opportunity to seek another judge if they do not think they can get a fair shake for their client.

“There were some abusive judges in Wisconsin,” Cimpl said. “If they knew why you substituted against them, they would hold it against you from one case into another.”

The original version of the bill sought the elimination of judicial substitutions in criminal cases, but Jacque said the most recent bill is a compromise.

There could be room for more compromise, he said, if the Legislature eventually reviews the reasons attorneys give for substitutions. The Legislature, Jacque said, could expand the guidelines for substitutions.

“Hopefully, we can see how this proposed change would work,” Jacque said, “and maybe it will result in improvements, and maybe it will require additional changes down the road.”

But Birdsall said the bill already goes too far.

“I’m not going to be writing to a judge and say, ‘You know, I think you are really unfair and I want you to recuse yourself,’” he said. “Who wants to do that? I don’t see how it helps a client to piss the judge off.”

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