Where Sole Reason to Revoke Probation is Termination From Drug Court the Drug Court Judge Can't Preside Over the Revocation Hearing

State v. Cleary, Minn.Ct.App., 7/5/2016.  A term of Mr. Cleary's probation of an 81 month prison sentence for second degree drug sales was to enroll and complete the local drug court.  When Mr. Cleary told the drug court team that he'd injured his hand while at work fellow drug court participants told the team that this wasn't true and that he'd hurt his hand during a fight.  Inasmuch as this was his seventh violation of drug court rules the team bounced him from the program.

A probation violation report followed shortly thereafter.  Because the drug court judge was to hear the probation violation Mr. Cleary moved to have that judge disqualified.  He argued that this judge had been privy to confidential drug court team discussions and to the decision to terminate him from the program.  And, only the drug court judge got to read the journals that each participant was required to maintain.  The chief judge denied the motion to disqualify.  The judge then revoked Mr. Cleary's probation.

The court of appeals reverses and returns the case back to the trial court for a do-over before a different judge.  The court points out that among the safeguards to which a probationer is entitled is the right to a revocation hearing before a "neutral and detached" judge. Gagnon v. Scarpelli, 411 U.S. 778 (1973).  A judge also should not preside at a judicial hearing if the judge's impartiality might reasonably be questioned.  Minn.R.Jud.Conduct 2.11(A).  A special courts judge is "deep into the weeds" of each participant's lives, reading private journals, discussing other confidential information - like drug assessments, mental health assessments - with the team, throwing parties for successes.  The very idea that the same drug court judge could ignore all that in fact or in appearance during a revocation hearing is so preposterous it beggars the question why the state fought this:

In the present case “the risk of injustice to the parties in the particular case” and “the risk of undermining the public’s confidence in the judicial process” persuade us that reversal is necessary to correct the error. Liljeberg, 486 U.S. at 864, 108 S. Ct. at 2205. The state took no position before the chief judge of the district court on the motion to remove the drug court judge from the probation revocation hearing. As such, we conclude that the risk of injustice to the state in this case is minimal. On the other hand, were we not to reverse and remand this case, the risk of injustice to appellant would be high because of the appearance of partiality and appellant’s liberty interests at stake. Appellant has a due-process right to a neutral and detached decision-maker. And reversal would also strengthen the public’s confidence in an impartial judicial process for drug court probationers.