State v. M.E., 2019AP2228, 9/1/2020, District 1 (one-judge decision; ineligible for publication); case activity

M.E. was adjudicated delinquent after a bench trial. During the trial, the judge overheard a conversation between a state’s witness and the prosecutor that led her to believe her sequestration order had been violated. M.E. argues the judge was disqualified because she was now a witness in her own case; the court of appeals concludes she cured any problem by striking the witness’s testimony.

The issue arose during cross-examination of this state’s witness (named “R.J.” here); she testified she had one prior conviction. The court sent her to the hallway so it could confer with the parties about whether they agreed this was the right answer; with that settled, the judge sent the prosecutor to retrieve the witness. On overhearing conversation in the hallway, the judge asked the prosecutor what she’d said to the witness; she said she had explained that the lawyers were addressing a legal issue. M.E. moved for mistrial, arguing the prosecutor’s conversation with the witness violated the court’s sequestration order.

After briefing, the court concluded the prosecutor had told the truth about what was said in the hallway. The witness, however, said she didn’t remember anyone talking to her, which the court found incredible. Given that the witness’s testimony was, the court though, not terribly important, it determined that striking it would remedy any problems. (¶7).

On appeal, M.E. contends that the judge was required to disqualify herself, because she “was a witness to the conduct that violated the sequestration order, and there subsequently developed a disputed issue of fact about what was actually said between the prosecutor and the witness.” (¶9). M.E. relies on Wis. Stat. § 757.19(2)(b), which mandates disqualification where the judge is a “material witness” (unless the parties agree to waive disqualification).

The court of appeals disagrees:

M.E. asserts disqualification was required under WIS. STAT. § 757.19(2)(b), where a judge is a material witness. We conclude that the circuit court was not a material witness and that the court applied the appropriate remedy. Here, the State informed the circuit court that when it left the courtroom to retrieve R.J., it apologized to R.J. and told R.J. that the defense may have a few questions. The circuit court, having heard voices outside of the courtroom, accepted the State’s explanation and rejected R.J.’s testimony that she did not recall speaking with the State. The circuit court also noted that R.J. was not a relevant witness and did not contribute anything of significance to the trial. The circuit court remedied any possible appearance of impartiality by striking R.J.’s testimony. Without R.J.’s testimony, what the circuit court may or may not have witnessed was irrelevant to M.E.’s case.

(¶11).

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