Trial Judge’s Pre-Hearing Coaching of Prosecutor Requires Recusal

State v. Schlienz, Minn.S.Ct., 11/05/2009.  The state charged Mr. Schlienz with various sex offenses for his “involvement” with two fifteen year old girls and one seventeen year old girl.  Mr. Schlienz eventually entered Alford pleas to various of those counts but at sentencing moved to withdraw those pleas.  The trial court denied the motion.

Before hearing the motion, however, the trial judge did some coaching with the prosecutor, with the presence of defense counsel.  The trial judge had one of those crib sessions recorded.  Here’s a tidbit:

one of the things I don’t want us to get into, uh, or at least to – to be blind-sided, is when I turn to the prosecutor, and ask, “Do you claim any prejudice,” to say, “Gee, Judge I haven’t thought about that.” Wanted to put ya on notice, and I’ll tell [defense counsel]I put ya on notice, uh, when we get him here, and the other thing is specifically, uh, I want to be able to, uh, inquire of you at least a little bit about the – the attitude, uh, of, uh, the victims in terms of, uh, allowing a withdrawal.

Emphasis in original.  In opposing the motion, here’s some of what the prosecutor said:

Um, that would be obviously time consuming and burdensome to the State. It also would be, uh, burdensome and extremely unfair to the victims in this case. They have been through an emotional roller coaster. Uh, they’ve demonstrated a great deal of, uh, bravery . . . in coming forward in the first case in this particular matter, and to put them through that again simply because what we have here is Mr. Schlienz, uh, making a plea of his own accord for apparently pragmatic reasons on his own part, and then realizing that the rest of the world simply did not see things the way that he does – he now has buyer’s remorse, doesn’t like the way it’s gonna turn out, asks to vacate his plea, it is totally inappropriate and – and would be unfair.

Emphasis in original.  The appellate court found that the trial judge had not only had ex parte communications with the prosecutor, but that he abandoned any semblance of fairness to both sides:

The nature of the communication leads us to conclude that the communication, at a minimum, reasonably called the judge’s impartiality into question. Because a judge is disqualified when his or her impartiality is reasonably called into question, the judge’s failure to recuse in this case constituted error that was plain.