“[Ejven though the trial judge’s letter raises a reasonable question regarding the judge’s impartiality, the fact is that Rochelt received a fair trial and therefore, the judge’s refusal to recuse himself was harmless error.”
How later courts described this case
- “[Ejven though the trial judge’s letter raises a reasonable question regarding the judge’s impartiality, the fact is that Rochelt received a fair trial and therefore, the judge’s refusal to recuse himself was harmless error.”
- “[E]ven though the trial judge’s letter raises a reasonable question regarding the judge’s impartiality, the fact is that Rochelt received a fair trial and therefore, the judge’s refusal to recuse himself was harmless error.”
- "The trial judge's declaration that he was not biased satisfies the subjective test."
Written by the judges who cited it.
The opinion
SUNDBY, J.
(dissenting). The majority concludes that the trial judge's letter of October 20,1989, to Police Training Services "raises a reasonable question regarding the judge's impartiality." Majority op. at 375.1 agree. However, I disagree that Rochelt was required to show that he was, in fact, treated unfairly by the trial judge. Under the objective test, which we must apply, I conclude that the trial judge was required to recuse himself because of the appearance of partiality. I therefore dissent.
The majority relies on our statement in State v. Hollingsworth, 160 Wis. 2d 883, 894 , 467 N.W.2d 555, 560 (Ct. App. 1991) as follows:
A litigant is denied due process only if the judge, in fact, treats him or her unfairly. Margoles v. Johns, 660 F.2d 291, 296 (7th Cir. 1981). A litigant is not deprived of fundamental fairness guaranteed by the constitution either by the appearance of a judge's partiality or by circumstances which might lead one to speculate as to his or her partiality. Id.
In Hollingsworth , we did not make our own analysis of the law, but relied solely upon dicta in a federal district court opinion, Margóles, adopted per curiam by the Seventh Circuit Court of Appeals. The real issue in Mar-góles was whether a collateral attack on a judgment entered five years earlier, on the ground that the judge's impartiality could reasonably be questioned, was sufficient to void the judgment. See Margoles, 660 F.2d at 296 . This is hardly weighty precedent and cannot overrule the clear authority to the contrary announced in State v. Walberg, 109 Wis. 2d 96, 105 , 325 N.W.2d 687, 692 (1982).
*390 In Walberg , the court stated the controlling principles as to recusal in a criminal case, under the federal constitution. The Walberg court quoted from State v. Asfoor, 75 Wis. 2d 411, 436 , 249 N.W.2d 529, 540 (1977) as follows:
Although the judge acted fairly in this case, in some situations he should recuse himself. "The trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned." ABA Standards, The Function of the Trial Judge, sec. 1.7 (1971). The trial judge here had no doubt of his ability to preside impartially in this case. The question then becomes whether there was any appearance of [partiality]. Code of Judicial Ethics, 36 Wis. 2d 252, 256 , Standard 3 (1967). [Emphasis added.]
The latter standard is now expressed in SCR 60.01(3) which provides in part: "A judge should administer the law free of partiality and the appearance of partiality." (Emphasis added.)
Rochelt cannot show that he did not receive a fair trial because of the judge's partiality. Therefore, were we permitted to affirm Rochelt's conviction because the appearance of partiality of the trial judge did not affect the fairness of his trial, I would join the majority. However, the partiality or appearance of partiality of the judge is not subject to a harmless-error analysis. The lack of an impartial judge undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review.
I realize that the Walberg court made a harmless-error review of the judge's partiality in that case. 109 Wis. 2d at 109 , 325 N.W.2d at 694 . However, when we deal with federal constitutional rights, we must follow *391 the decisions of the United States Supreme Court. State v. Johnson, 133 Wis. 2d 207, 216 , 395 N.W.2d 176, 181 (1986). In Arizona v. Fulminante, 111 S. Ct. 1246, 1265 (1991), the Court noted:
These [total deprivation of the right to counsel at trial; a judge who is not impartial] are structural defects in the constitution of the trial mechanism, which defy analysis by "harmless-error" standards. The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial.
The Wisconsin Supreme Court is now in accord. State v. Dyess, 124 Wis. 2d 525 , 543 n.10, 370 N.W.2d 222 , 231 n.10 (1985).
I conclude that we may not apply a harmless-error analysis to the conduct of Rochelt's trial. We must therefore reverse the judgment and remand for a new trial before a different judge.