Thursday, November 5, 2009
The Minnesota Supreme Court reversed and remanded a criminal conviction for sexual involvement with two fifteen-year-old victims. The court's syllabus:
The sentencing judge's ex parte communication with the prosecutor, during which he suggested to the prosecutor what arguments to make and how to make them, reasonably calls the judge's impartiality into question and constituted plain error that affected the defendant's substantial rights.
There were two improper communications, one on the phone and the other in chambers. The in-chambers communication was recorded and transcribed. The discussion related to the defendant's possible motion to withdraw his guilty plea.
The court quotes the transcript of the discussion and compares it with the prosecutor's later argument before the judge:
Here, it is undisputed that the judge initiated an ex parte communication with the prosecutor about a pending matter. But nothing in the record suggests that the communication was for scheduling or administrative purposes, or an emergency. Rather, the record indicates that during the ex parte communication the judge told the prosecutor to be prepared to respond to the anticipated plea-withdrawal motion and suggested substantive arguments to be made to the anticipated motion. Therefore, we conclude that the ex parte communication was error.
Good thing there was a record of the chambers conference. Wonder how often such things go unrecorded. (Mike Frisch)