Judicial Bias, the Top Button, and the Criminal Case Backlog [Updated 9-17-22]

As a criminal defense lawyer, judicial bias is a subject of great interest to me.  In 2019, I published a law review article titled Combating Judicial Misconduct: A Stoic Approach.  (You can find all of my law review publications, organized by topic, here.)  In that article, I described how judges can be incompetent, hostile, biased, and in some cases flat-out unhinged.  I also provided strategies for combating such misconduct, including the defense motion to recuse the offending judge.  I have filed such motions in the past, and I included a sample motion in the article for criminal defense lawyers to adapt and use in their own cases.

While I have no reason to believe he ever read my article, I was very interested to learn that another defense attorney, Christopher Carson, recently filed his own motion to recuse a criminal court judge.  Carson alleges in his motion that Racine, Wisconsin trial-court jurist Eugene A. Gasiorkiewicz conducted himself so poorly in the courtroom that it constituted judicial bias against the defense, thus requiring recusal.

The entertaining facts alleged by Carson in his motion include these.  In front of a packed courtroom—i.e., “lawyers, defendants, members of the public and court staff”—the judge became “emotionally triggered” and publicly lambasted Carson for not buttoning the top button of his dress shirt.  However, Carson “could not comply with the Court’s novel interpretation of the lawyer’s dress code” because, possibly due to recent weight gain, “his shirt’s collar was too small for buttoning at the top, given the melancholy thickness of [his] neck.”  After yelling at Carson, the judge then allegedly threatened him with a contempt finding should he ever repeat this fashion misstep.

I must first admit my own bias, as I can relate to Carson’s sticky predicament.  I’ve packed on several pounds in the last few years, and my preferred retailers don’t sell shirts with neck sizes larger than 18.  In fact, I haven’t buttoned a top button in at least four years.  But more importantly, Carson argues in his motion that he was dressed properly, wearing “a coat, tie, long sleeve shirt, dress pants, a belt, socks and dress shoes.”  Further, he writes, his tie was “rammed all the way up, as far as it could go,” and “not one single spot, however small, of [his] skin was the least bit visible—ever.”

Carson’s motion then cites the relevant judicial ethics rules.  Even some lawyers may be surprised to learn that judges have ethical duties not to threaten lawyers and not to use words, tone, facial expressions, or body language toward the lawyers or litigants that could give even the impression of bias.  As Carson explained in his motion, such judicial hostility toward one party or one party’s lawyer may require recusal.

Carson concluded his motion to recuse by referencing the judge’s alleged threat of contempt—a very serious step which carries potential jail time for the lawyer.  Carson asks rhetorically how a judge “could ever conceive that a lawyer, being so morally compromised and sunken in unprofessional squalor as to merit, possibly, the supreme penalty available in Wisconsin, incarceration, could nevertheless be worthy of a fair hearing”? 

That’s a good point.  Carson’s language may at first appear grandiose or even hyperbolic, but it is not.  If his facts are accurate, his point rings true.  And his language merely matches the absurdity of the alleged judicial threat.  We are, after all, talking about contempt and potential incarceration of a lawyer over, quite literally, nothing.  

Now, I wasn’t at this court hearing and I didn’t witness the judge’s alleged outburst or threat.  I therefore only quote attorney Carson’s motion, a public document he submitted as an officer of the court.  But if Carson’s version of events is even close to accurate, then kudos to him for filing the motion to recuse.  If judges go off the rails, we defense lawyers need to call them on it, remind them of their own ethical obligations, and ensure that our clients get fairness and the equally important appearance of fairness.

Criminal Case Backlog

And this leads nicely into a related topic.  Wisconsin has a huge backlog of criminal cases all over the state, including in Racine County where Judge Eugene A. Gasiorkiewicz presides.  Racine is immediately north of Kenosha, where I practice.  I know for a fact there aren’t enough public defenders or private bar attorneys in Racine, and the Racine public defender’s office has to go to great lengths to find out-of-county defense lawyers to represent defendants in what may now appear, to some, to be hostile territory. 

Put another way, after reading attorney Carson’s motion, what are the odds that I would travel even a few miles north into Racine to accept case appointments?  Considering such a hypothetical trip, I find myself asking these questions.  Why would I risk appearing in front of this judge?  Why would I want to face potential judicial hostility and possible contempt findings for an unbuttoned top button?  What other landmines would await me if I ventured into Racine?  Are buttons this judge’s only trigger point?  What about other Racine judges?  (And I’m not the only one who would wonder these things.  I know that Carson’s motion is circulating among defense lawyers throughout the state.)

Admittedly, I have only traveled out-of-county for about four cases in my twenty-plus years of practice.  The reason I generally don’t leave Kenosha is twofold.  First, from a practice and procedure standpoint, every county is like a foreign land.  For example, when metaphorically warming up before calling out the judge in his motion to recuse, Carson explains one of Racine’s procedural quirks: 

In Racine, perhaps uniquely among other county criminal dockets in the State of Wisconsin, a kind of anarchic, informal method of getting defendants’ cases called reigns.  Basically, neither the clerk nor the judge directs lawyers to come forward with their clients in any kind of order or even prompting.  The lawyers themselves are tasked with blurting out their client’s case, with the promise that it is “ready,” and the judge simply motions the lawyer to come forward with his client.

If I hadn’t previously ventured into the Racine courthouse to experience that for myself, I wouldn’t believe it.  I remember thinking, “What the hell is going on here?”  And that leads to my second point.  In my few experiences out-of-county, court commissioners and judges took great pride in knowing procedures that I didn’t.  They acted as though knowledge of their arbitrary, even bizarre courtroom policies was somehow the measure of general intelligence.  They knew those rules, I didn’t, and therefore they felt smart.  This appeared to bring them some joy.  Whatever gets you through the day, I guess.

In sum, practicing out-of-county is bad enough to begin with.  And now that judicial smugness and superiority might have graduated to threats of contempt, I think I’ll be staying put.  At least for now, there are plenty of clients to defend in Kenosha.  Racine will have to look to other lawyers to help with the county’s criminal case backlog.

Update

The judge has quickly replied to Carson's motion, according to CCAP.  I will try to obtain the document to see if the judge recounts a different version of events.  Check back for future updates on this saga!

Update 9-17-22

The judge's ruling on the defense motion to recuse is rather disappointing.  As background, after the exchange in court, the defense actually moved orally for recusal.  That was denied on the spot.  The defense's written motion, discussed above, was therefore a "motion to reconsider" the earlier ruling.  Attorney Carson conceded, in the written motion, that his in-court request was off-the-cuff, if you will, and undeveloped, which is why he filed the written motion for reconsideration.  

The judge replied so quickly to the written motion (two days later) because he really didn't reply at all.  He did not dispute Carson's version of events, he did not cite any judicial ethics rules or case law, and he did not apply any legal reasoning in reaching his decision.  Instead, the judicial order simply read, in its entirety, "The motion to reconsider judicial denial of defense request for recusal is DENIED."  (Caps original.)

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