So you want a new judge or a change of venue?
One of the most frequent questions we get from our clients is whether they can get a different judge or a change of venue. The question is understandable – many clients hire us after a judge chooses to hold them on a cash bail and many others end up in the news and feel that they can’t get fair treatment locally. This is a short guide to a client’s options to request a new judge or request a change of venue.
THE RIGHT TO SUBSTITUTION
In Wisconsin, almost every person charged with a crime has a right to substitute the original judge assigned to their case, no questions asked. While there are some exceptions that we’ll go over shortly, everyone charged with a crime should be aware of this right. If you are charged with a misdemeanor offense you have the right to request a new judge before the initial appearance, and if you are charged with a felony, you have a right to request substitution either before the preliminary hearing or before arraignment. The first things to keep in mind are (1) that the request must be made in writing, and (2) it must be made before the initial appearance in misdemeanor cases or arraignment in felony cases. An experienced defense attorney will advise you of these requirements and make substitution requests on your behalf.
I treat substitution as a strategic decision and only advise clients to exercise this right if I think there will be a benefit to doing so. For instance, if a client thinks that his or her case is heading for a plea and sentencing and the assigned judge has handed down harsh sentences in similar cases, it might make sense to request a new judge up front. Other cases might be destined for contested motion hearings or jury trial, and I might recommend substitution if experience leads me to believe that the assigned judge will be difficult to work with during a particular contested hearing. In some other cases, clients are concerned about the fact that their assigned judge has previously presided over their cases and would feel better with a judge that they haven’t seen before. For these reasons, it is important to spend time with our clients and understand their goals before the initial appearance or arraignment so we will know whether it makes sense to request substitution.
The one major drawback to requesting substitution is that we cannot control who is assigned to the case. Every client should be mindful of the fact that the number of cases a judge is handling is tracked by the local district administrator, which means that judges who are substituted the most tend to get assigned where other clients have requested a new judge. This means that there is the potential to end up with substitute judges that have a low caseload for a reason: everyone else is substituting them. Another drawback of requesting a substitute judge is that it can result in significant delays. Sometimes substitute judges can be coming from more than two hours away, and it can take months to schedule routine appearances. In La Crosse County, this isn’t much of an issue, because we almost always see another local judge assigned, but this is a factor to keep in mind if charged in one-judge counties like Vernon, Trempealeau, Crawford, or Jackson. Every client and case is unique and an experienced defense attorney can advise you on whether it makes sense to request substitution.
There are a few exceptions to this rule that are important to cover. The first is with joined codefendants. You will know that your case is joined if your name appears in the header of a criminal complaint with another codefendant. In that case, both codefendants must request substitution or move to sever their cases. Otherwise, both defendants are stuck with the assigned judge if one defendant does not elect to substitute. Another exception is when a new judge is assigned to a case. This happens when a judge retires and the newly-elected judge takes over. A client has twenty days from notice of a new judge to request substitution and can substitute even if he or she has previously done so.
Judicial recusal is different from substitution and happens when a judge has some knowledge, bias, or preconception about a case that causes them to step aside. Most often we see recusal when a judge knows a defendant, alleged victim, or family member or a person closely involved as a party. The case will be reassigned and a client has the option to exercise substitution of the new judge.
However, in certain cases a client can also request recusal of a judge if the judge has previously shown bias in their case. I have on rare occasion requested recusal of judges when they have promised to harshly sentence clients who are revoked from supervision. There is clear case law that requires judges to keep an open mind and refrain from threatening to impose maximum penalties if supervision is revoked. That is why it is important for defense attorneys who handle sentencing after revocation hearings to be aware of what happened in the original case before heading to a final sentencing hearing.
CHANGE OF VENUE
This is another question I hear from many of my clients whose cases end up in the news. Whether they can request that their case be moved to another county due to pretrial publicity. In practice, a client’s burden to change venue is impossibly high. Just because a case has been in the news or even received extensive pretrial coverage is not grounds for changing venue. Rather, the burden is on the client to establish “such prejudice that a fair trial cannot be had” in the county of jurisdiction. Case law requires a showing that pretrial publicity is both pervasive and inflammatory, that the timing of publicity prevented a fair jury panel from being seated, and in certain cases, that the prosecutor or law enforcement participated in creating adverse publicity. Even if a client meets this burden, the judge can bring in a jury panel from another county, rather than moving the trial entirely.
One major consideration in highly-publicized cases is whether a client wants a jury from another county. Having a panel that will be familiar with local landmarks and mindsets can be a huge advantage in many cases that is lost if a group of unfamiliar jurors is brought in from across the state. In other cases, the preferred juror demographic might come from the county where a case is charged. As always, the best advice might be to be careful what you ask for. Attorneys are able to reduce the risk of getting jurors who have extensive exposure to pretrial publicity by having the judge send out pretrial written questionnaires before jury selection to weed out jurors who have read or seen coverage of major cases. When a case has received significant publicity, the judge will allow attorneys to question jurors individually about what they have seen or heard about a case.