State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148
For Carprue: Stephanie G. Rapkin
Issue/Holding:
¶58. Carprue contends that he was denied his due process right to a fair trial because Judge Schellinger was not impartial. His evidence consists of the judge’s actions in calling and questioning Morrow and in questioning Carprue.¶59. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955); see also State v. Kywanda F., 200 Wis. 2d 26, 35, 546 N.W.2d 440 (1996); State v. Walberg, 109 Wis. 2d 96, 105, 325 N.W.2d 687 (1982); Asfoor, 75 Wis. 2d at 436; State ex rel. Mitchell v. Bowman, 54 Wis. 2d 5, 7, 194 N.W.2d 297 (1972). Case law makes clear that when a judge presides in a case where the judge has a direct, personal, substantial pecuniary interest in the outcome of the proceeding, Tumey v. Ohio, 273 U.S. 510, 523 (1927), this constitutes “structural error” and would be subject to automatic reversal. State v. Harvey, 2002 WI 93, ¶37, 254 Wis. 2d 442, 647 N.W.2d 189.
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¶63. Carprue bases his claim on the broader argument that Judge Schellinger was anti-defendant. As we noted above, for judicial disqualification based on general allegations of bias to be constitutionally required, Carprue must demonstrate that Judge Schellinger’s conduct represented the “extreme” case. The record does not warrant such a finding.
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¶68. Although we reverse the decision of the court of appeals, we stand with the court of appeals in calling upon our circuit courts to foster an atmosphere of perfect impartiality and to strive for absolute objectivity in carrying out judicial functions. Carprue, 266 Wis. 2d 168, ¶12 (citing Glasser v. United States, 315 U.S. 60, 82 (1942), superseded on other grounds by Fed. R. Evid. 104(a)).
For an instance of impermissibly intrusive judicial involvement, violating defendant’s due process right to fair trial, see Wallace v. Bell, E.D. MI., 03-CV-10115-BC, 8/31/05 (“the trial judge trenched onto forbidden territory when he called and questioned an unlisted expert witness in violation of his own sequestration order who bolstered the prosecution’s DNA witness”).
