Judge Not Disqualified Even Though Negotiating During Trial To Become a Prosecutor

Troxel v. State, Minn.S.Ct., 2/17/2016.  A jury convicted Mr. Troxel of first degree murder while committing first degree criminal sexual conduct.  Mr. Troxel had attended an all night party at which a lot of drinking occurred.  Not only that, T.K. and others were playing a game which involved removing clothing.  T.K. removed her shirt and bra; whether this was a win or a loss the court doesn't say.  T. K. was also coming on physically to Mr. Troxel.  Around dawn, as the party was breaking up, a witness saw T.K. talking with Mr. Troxel, who was wearing black boots, near his car.  Meantime, M.W. was sending sexually explicit text messages to T.K and waiting for T.K. to hook up with him.  Later in the morning a fisherman found T.K. in a muddy ditch, dead with thirty-seven stab wounds among other injuries. Footwear impressions in the ditch matched a pair of black boots (which also had mud on them) that investigators found in Mr. Troxel's bedroom.

Mr. Troxel wanted to introduce third party perpetrator evidence that M.W. had killed T.K.  The trial judge denied that request. Justice Wright affirms that ruling.  Evidence of an alternative perpetrator must "inherently connect an alternative perpetrator to the commission of the charged crime..."  State v. Jenkins, 782 N.W.2d 211 (Minn. 2010).  In addition to the text messages, Mr. Troxel had M.W.'s statement to police that he had been at the location of the party because T.K. had asked him to pick her up. However, M.W. said that T.K. stood him up so that after a while he left.  The court said that just putting M.W. at the location of the party wasn't enough; it likely wasn't even the location where the killing occurred.

Mr. Troxel also wanted an instruction on the lesser-included offense of second degree intentional murder.  The court concluded that there was a rational basis for the jury to convict Mr. Troxel of second degree intentional murder; but, there was no rational basis for the jury to have acquitted him of first degree murder because the only way that the jury could have done that was by finding that T.K. (who by the way had consented to drunkenly play disrobing games) had then consented to sex in a muddy ditch:

the physical evidence demonstrates that the sexual penetration likely occurred in that mud-filled ditch, which is an improbable location for consensual sexual activity. 

It turned out that the trial judge was negotiating to become the county attorney in the next county over, which county was within the court's district.  The trial judge disclosed this information and stopped taking cases from that county, but then the chief judge of that district denied Mr. Troxel's motion that the judge recuse himself for an appearance of partiality. Any county attorney represents, among others, the "State of Minnesota".  Apparently, however, there's the part of the state that comprises a specific county, and then there's the rest of the state. 

This recusal part of the Opinion lead Justice Lillehaug, joined by Chief Justice Gildea and  Justice G. Barry Anderson to dissent:

the public’s confidence in the judicial process is undermined when we do nothing in a criminal case over which a judge presided while seeking to represent one of the parties—the State—as a prosecutor. As the concurrence in Pratt, applying Powell, aptly noted: “The citizens of Minnesota rely on the court to be vigilant in making sure that all cases will be decided in accordance with the highest traditions of the judiciary.”