So what should happen when a judge breaks the law?
Milwaukee County Circuit Judge Richard Sankovitz clearly violated statute when he let jurors take notes during closing arguments in a criminal trial.
The defense lawyer objected. The prosecutor indicated agreement with the objection, but did not join it.
The District 1 Appeals Court panel, in an opinion by Appeals Judge Kitty K. Brennan, labeled it "harmless error" and upheld the conviction of Jesus C. Gonzalez on one count of first-degree reckless homicide and one count of second-degree recklessly endangering safety.
But, wrote Appeals Judge Joan Kessler in a concurring opinion: "A reasonable person might well ask under such circumstances: 'If judges do not have to follow the law, why do the rest of us have to do so?'"
In their opinions, both Brennan (joined by Appeals Judge Patricia S. Curley) and Kessler said Sankovitz was wrong in what he did. The law, in fact, is pretty clear on the matter: "If the court authorizes note-taking, the court shall instruct the jurors that they may make written notes of the proceedings, except the opening statements and closing arguments..."
And during the trial, according to the opinions, the judge himself told the jury, "There's a state statute which says that jurors are not allowed to take notes during the closing argument."
He added, "Most judges believe that the state statute is one that gives us some discretion."
The defense, in its objections, said arguments are simply each side's inferences drawn from the evidence and that jurors should not treat lawyers' arguments and actual evidence in the same way.
The prosecutor actually cited for the judge the statute that prohibits note-taking during closing arguments.
Sankovitz ignored them both. "I made my record of why I am allowed to use my discretion to allow the jurors to take notes," he told them.
Brennan, in the appeals opinion, wrote that there was still enough evidence to convict Gonzalez; that he still was tried before an impartial jury; that the judge gave appropriate instructions about evidence; and that no new evidence was introduced during the closing arguments.
Kessler, though, noted that state law (apparently one that was followed!) mandates that juror notes be destroyed when a trial is completed.
"Any evidence of prejudice or juror misconduct which might appear in the notes will never be available to establish prejudice to either side," she wrote.
The proper question before the court, she said, "was whether a legislative determination of policy may be disregarded based on...the court's belief that its policy is superior to the policy chosen by the legislature." she wrote.
She concluded: "When the trial court believes the legislative policy is unwise, the remedy is to pursue legislative change, not to exercise 'discretion' to ignore the policy."
Help WJI advocate for justice in Wisconsin