Some defendants in criminal cases should be required to make judicial substitution requests before knowing who the assigned judge is, according to state Supreme Court Justice Rebecca Grassl Bradley.
State law now says substitution requests may be made before arraignment and before motions are filed. The Supreme Court has previously clarified the statute, § 971.20(4), ruling that a defendant must be given a reasonable amount of time after learning the identity of a the presiding judge to make the substitution request.
Grassl Bradley said the court erred in 1974's Baldwin v State of Wisconsin in finding that requiring substitution of an unknown judge could deny the constitutional right to a fair trial, she said.
"The court never cited a single source for its claim that the statute violates the right to an impartial judge for some defendants," Grassl Bradley wrote in her concurrence in Antonio S. Davis v. Dane County, a decision handed down last month. "Nor did the court explain how the right to an unbiased judge would be violated by applying the plain meaning of the statute. The ability to exercise a peremptory judicial substitution is unrelated to judicial bias against the defendant."
"Even if applying the plain meaning of the statute would violate due process when the defendant doesn't know the identity of the assigned judge prior to arraignment, the Baldwin court erred by impermissibly rewriting the statute," she wrote.
None of Bradley's six colleagues joined her concurrence.
A bit of background on the Davis case.
Davis was charged with two misdemeanors in Dane County Circuit Court. He argued before the Supreme Court that Circuit Judge Ellen Berz failed in a plain duty to treat as timely his substitution request. Because of delays in getting a lawyer through the State Public Defender's office, Davis was had only partial legal representation in his joint arraignment-initial appearance and failed to meet substitution deadlines.
The justices were sympathetic to Davis' lack of full representation at at the hearing, Justice Janet Protasiewicz wrote for the majority, but but "we hold that the circuit court did not have a plain duty to treat Davis's request for substitution of judge as timely," she said.
Protasiewicz was joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky. Justice Brian Hagedorn wrote his own concurrence arguing Davis' arguments were forfeited and that should be the end of the story, and Justice Annette Ziegler dissented, arguing that the case should have been dismissed as improvidently granted.
In her concurrence, Grassl Bradley argued that it did not matter whether Davis knew who the presiding judge was. The statute requires him to make a substitution request before arraignment or before motions are filed..
"Although this court comes to the right conclusion, it does nothing to address the errors this court made" in Baldwin, she said.
The court should overturn Baldwin, even though no one asked it to, she said.
Quoting herself in a prior dissent, as she likes to do, she wrote in a footnote, "The majority forgets that {l]itigants do not dictate the decisions of this court; the law does. As proclaimed over 160 years ago, '[w]e sit here to decide the law as we find it, and not as the parties or others may have supposed it to be.'"
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