Wednesday, February 6, 2019
The Minnesota Supreme Court affirmed a murder conviction notwithstanding an ex parte communication between the judge and defense counsel
Immediately before opening statements, an ex parte conversation occurred between Mouelle’s trial counsel ("Counsel") and the district court judge in chambers in the presence of the court reporter. During the conversation, Counsel informed the court that if Mouelle chose to testify, Counsel was "going to have to . . . do as well as [he could] under Whiteside." Counsel also told the court that he and Mouelle could not agree on whether Counsel should give an opening statement before the State presented its evidence. In describing the disagreement, Counsel quoted parts of a conversation that he had with Mouelle. Based on the ongoing disagreement, Counsel explained that he would request a short recess after the prosecutor’s opening statement. The judge said, "I’m not going to comment any further about your conversations with your client as they are privileged. We will take a recess after the prosecution’s opening statement . . . and you can let me know if you’re ready."
The State gave its opening statement and, as promised, the court took a brief recess. Counsel then gave an opening statement. After the State rested its case, Mouelle chose to testify. Counsel presented Mouelle’s testimony in the traditional question-and-answer format.
Not reversible error
we conclude that an objective, unbiased layperson with full knowledge of the facts and circumstances would not question the district court’s impartiality. After the ex parte conversation ended, Counsel’s concerns were never again mentioned during the remainder of the jury trial. Critically, the jury—the fact finder here— was never exposed to the concerns about Mouelle’s testimony that Counsel raised during the ex parte conversation.5 Moreover, Counsel’s decision to present Mouelle’s testimony in the usual question-and-answer format suggests that Counsel’s Whiteside concerns, as well as his disagreement with Mouelle, had been resolved before Mouelle testified. Certainly nothing in the manner that Mouelle’s testimony was presented suggested to the jury that anything was amiss. And, as discussed in more detail below, the record does not reflect any behavior by the district court that would lead a reasonable examiner, with full knowledge of the facts and circumstances, to question the judge’s impartiality. Consequently, we conclude that Mouelle failed to establish that the Code of Judicial Conduct required the district court judge to recuse herself. Because Mouelle failed to show even the appearance of partiality, we hold that no error occurred, structural or otherwise, when the district court judge presided over his jury trial.
Nix v. Whiteside, of course, is a United States Supreme Court decision. (Mike Frisch)