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  • WisBar News
    January 22, 2015

    Defendant Who Didn’t Get Full Substitution of Judge Gets New Trial

    Joe Forward
    Legal Writer

    Jan. 22, 2015 – A defendant who requested a substitution of judge in the criminal case against him will get a new trial because the judge, who granted the substitution, ultimately presided over the trial, the Wisconsin Supreme Court has ruled.

    Charged with burglary and misdemeanor theft, among other charges, Richard Harrison filed a timely and proper request for substitution of the circuit court judge. Under Wis. Stat. section 971.20, defendants have a right to one substitution without reason.

    The request was granted and the case was reassigned to a different judge in the neighboring county. That judge found probable cause and bound the case over for arraignment and trial, but sent the case back to the original substituted judge.

    The original judge, the Hon. Jon Counsell, presided over Harrison’s arraignment on the charges, as well as new criminal charges against Harrison. That was okay. Under section 971.20(9), substituted judges can accept pleas and make bail determinations.

    Although Harrison’s lawyer notified the court that he would be filing a request for substitution on the second case, counsel did not mention the prior substitution request.

    The initial case was set for trial. Defense counsel later told the judge that his client wanted the judge to recuse himself. Judge Counsell denied the request and the case went to trial, where Harrison was found guilty and received a 13-year prison sentence.

    Harrison filed a postconviction motion seeking a new trial, arguing the judge had no authority to preside over the trial, sentencing, or postconviction. The motion was denied.

    An appeals court reversed. And in State v. Harrison, 2015 WI 5 (Jan. 22, 2014), a unanimous supreme court affirmed the appeals court, concluding that the trial judge lacked authority to preside because Harrison made a timely request for substitution.

    The supreme court noted that under section 970.20(11), a case cannot be returned to a substituted judge unless an agreement is signed by the defendant or the defendant’s attorney, the prosecutor, and both the substituted and substituting judges.

    “[I]t is undisputed that that no written agreement … was filed authorizing the substituted judge to return to preside over the trial, sentencing, and postconviction motions in the instant case,” wrote Chief Justice Shirley Abrahamson for the unanimous court.

    The court also rejected the state’s claim that Harrison forfeited his right to a peremptory substitution by failing to object to Judge Counsell presiding over those hearings.

    But the supreme court noted that under State v. Austin, 171 Wis. 2d 251, 490 N.W.2d 780 (Ct. App. 1992), “a request for substitution of the judge is not forfeited when the defendant makes a timely and proper substitution request, the substitution request is granted, and a new judge presides over one of the proceedings in the case.”

    Harrison timely and properly requested substitution, it was granted, and a new judge stepped in for a preliminary hearing, the court noted, distinguishing other cases in which the defendant’s request was untimely or a substitution request was not considered.

    The court declined to overrule Austin, despite the state’s argument that the forfeiture rule should always apply to promote case expediency and efficiency, and to prevent abuses. But the court did not rule that forfeitures or waivers could never apply.

    “We need not address whether under other circumstances an accused may forfeit or waive the statutory right to substitute the judge after a timely and proper request for substitution has been made and granted,” Chief Justice Abrahamson wrote.

    “We need address only whether under the circumstances of the instant case the defendant forfeited his request for substitution. Under these circumstances, the defendant’s right to substitution was not forfeited,” the chief justice explained.

    Finally, the supreme court rejected the state’s claim that a new trial was not warranted because the circuit court’s error was harmless and Harrison received a fair trial.

    “Applying a harmless error analysis in the instant case would nullify the defendant’s statutory right to substitution of the judge,” the chief justice wrote. “The statutory violation in the instant case is simply not amenable to harmless error review. …”

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