BENCH BLOG: High court correct in substitution ruling

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In a rare unanimous decision, the Wisconsin Supreme Court acted to protect a criminal defendant’s statutory right to peremptory substitution of judge.

The case of State v. Harrison arose in Clark County. Richard Harrison was charged with burglary and three misdemeanors as a repeater.

Clark County Circuit Judge Jon Counsell presided over the bail/bond hearing. By the time of the initial appearance, which Counsell also presided over, Harrison was represented by a second attorney since he had immediately rejected the first.

Substitution filed

Harrison’s second attorney filed a request for substitution against Counsell. The request was properly and timely made, and was granted.

Since Clark County is a one-judge county, Circuit Judge Thomas Flugaur from neighboring Portage County was appointed to preside over the preliminary hearing. Before the date of that hearing a third attorney had been appointed to represent Harrison.

For reasons that are unclear, the case was returned to Counsell after the preliminary hearing.

Why Counsell didn’t remember the request for substitution, or observe it in the court file or on CCAP, and why the third attorney did not note the request in his file or on CCAP, are not revealed in the decision.

What is revealed is that Counsell continued presiding over the case. That was done despite Harrison mentioning “a motion for change of judge” during a court proceeding and directing his attorney to file a request that Counsell to recuse himself. Counsell declined, perhaps because the recusal request implied that he was biased.

The matter proceeded to jury trial where Harrison was found guilty. Counsell sentenced him to 20 years imprisonment.

Harrison filed two postconviction motions on the basis that his request for substitution had not been honored. Counsell denied both motions and issued a final postconviction order. Harrison appealed from that order.

Court of Appeals review

The Court of Appeals summarily reversed the postconviction order and judgment of conviction.

It concluded that since the request for substitution was timely filed and granted, Counsell had “no authority to act further” under the plain language of the substitution statute, sec. 971.20.

Accordingly, the case was remanded for a new trial. The state filed a petition for review, which was accepted.

Whether right was forfeited

The state first argued to the high court that Harrison had forfeited his peremptory right of substitution by participating in the trial and sentencing without objecting to Counsell presiding over those proceedings.

The Supreme Court, in an opinion authored by Chief Justice Shirley Abrahamson, first applied the statute. It noted that a timely substitution request was filed and granted and a new judge was assigned. Thereafter, Counsell could only return to the case if there was compliance with sec. 971.20(11).

The subsection prescribes that the original judge can regain authority to act only if both attorneys as well as the original and substituting judges sign an agreement transferring the file back to the original judge. There was no such agreement here.

The court then delved into case law, leading with a Court of Appeals decision in State v. Austin. Like Harrison, Austin filed a request for substitution which was granted and a new judge presided over his case.

Austin’s supervision was subsequently revoked and the original, not the new, judge presided over his sentencing. Austin did not object to this.

The Austin court concluded that the doctrine of forfeiture does not apply after a request for substitution is granted. Rather, it behooves the court and attorneys “to check on previous substitutions as a matter of course.”

Despite similarity between the Austin facts and Harrison’s case, the state argued the common-law rule of forfeiture should apply to Harrison since he was silent in the face of Counsell presiding over his trial and sentencing.

The court responded that “[f]orfeiture is the failure to timely assert a right.” Harrison did not fail; his request for substitution was timely.

Once the timely request was granted, “the defendant did not have to take additional steps to avoid forfeiture of his substitution request.”

Consequently, Counsell erred by presiding over Harrison’s trial, sentencing and postconviction motions.

Harmless error analysis

The state next argued that the error was harmless. It asserted that Harrison received a fair trial before an impartial judge.

The court referred to the substitution statute’s declaration that a judge “has no authority to act further” after a timely request for substitution has been granted.

That lack of authority to act deprives a court of competency to act. When a court lacks competency to act, harmless error analysis does not apply.

The court further expounded that a harmless error analysis would nullify the statutory right to substitution. It would, in effect, require the defendant to demonstrate prejudice or articulate a reason for the substitution request.

That would fly in the face of the statute’s intent “that a defendant should not have to prove prejudice to obtain a new judge.”

Since the trial court erred and the error could not be harmless, the case was remanded for a new trial.

Commentary

While this opinion could have used a good edit to reduce repetitiveness and length, it is an important affirmation of a criminal defendant’s statutory right to substitute against a judge.

No reason need be given for the request, and nothing further needs to be done to assert the right after it is properly and timely made and granted.

At a practical level, this simple but potent request can lead to inconvenience, especially in one-judge counties where neighboring judges need to travel in to preside over such cases.

Nonetheless, the statute provides “a commendable procedure to protect the defendant’s right to a fair trial, to protect the judge from having his or her impartiality unfairly impugned, to avoid having the lawyer file an affidavit of prejudice without … guidelines … and to promote the bench’s and public’s interest in preserving confidence in the judiciary.”