No automatic right to a new judge on remand for new trial

State v. Dahlin, 753 N.W.2d 300 (Minn., July 24, 2008).

When the appellate court reverses a criminal conviction with a remand for a new trial, who doesn’t consider whether the original trial judge can fairly preside over the retrial? Trial counsel thought not and so sought to remove the judge peremptorily under Rule 26.03, subd. 13(4). The trial judge denied the request; trial counsel sought a writ of prohibition in the court of appeals, which the appeals court denied. It appears that the second trial started before the removal question could be presented to the Supreme Court. A jury convicted him again, the court of appeals affirmed the conviction again. The Supreme Court took review only of the removal issue.

But, can Mr. Dahlin appeal the removal issue as part of the direct appeal of the new conviction? Or, must he have sought review in the Supreme Court in order to have preserved that issue? Can the party who is trying to remove the trial judge really just lay in the weeds (a second) trial and then pounce when the trial doesn’t come out the desired way? The Court says, no: “…[A] party must timely petition this court for review of the denial of a writ of prohibition when the issue involves the right of peremptory removal, and that failure to do so constitutes waiver of further review of the removal issue in this court.”

The Court goes on to review the issue on the merits; it didn’t seem sporting to do its own pouncing. Mr. Dahlin argued that the remand revived the right or peremptory removal under the rule but the Court isn’t having any of that. That being the case, the plain language of the rule makes the removal ineffective.