Judge showed improper bias, appeals panel says

McGinnis

By Gretchen Schuldt
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An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison,  a State Court of Appeals panel ruled Tuesday.

The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.

"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."

The court ordered that Lamb be sentenced again by a different judge. 

Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.

Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance. 

He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.

He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea. 

During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.

At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.

''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"

"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"

Lamb said he understood.

McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?" 

Lamb said he did.

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"You’re going to prison today because we’re sick and tired of you." 

McGinnis heard from the district attorney, Lamb's attorney, and Lamb himself. Then the judge himself spoke.

"Well, just so there’s no surprise, I mean, you are going to prison today," he said. "I’m making that decision, and I think it needs to be communicated to you clearly without keeping you on edge as I tell you what’s going to happen, and you’re going to prison today because we’re sick and tired of you." 

Lamb had several chances at probation, but kept committing crimes, McGinnis said, adding that he did not "know many people with as low of character as you have."

McGinnis sentenced Lamb to two years in prison and two years on extended supervision.

McGinnis' comments "reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence," Hruz wrote.

The timing of the judge's comments was important because they occurred before sentencing arguments and before Lamb had a chance to speak on his own behalf, Hruz said. 

Wisconsin judges are required to consider several factors when passing sentence harsher than probation. They include the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs, Hruz said. 

McGinnis’ statements "failed to account for any of these sentencing factors and objectively show a 'serious risk' that he had already made up his mind about what kind of sentence Lamb would receive," Hruz said.