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Probation Violations – Disqualify a Judge?

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In a probation violations setting, the deck is already stacked against the defendant in the sense that the State’s burden of proof is lower and the rules of evidence don’t apply. And that does not even include the possibility that the judge that initially placed the defendant on probation may now be the one to decide what the consequences are for a probation violation. Can something be done to disqualify said judge? Yes, under certain circumstances.

A recent Minnesota Supreme Court case clarified that probation violation judges must be impartial. And that a decision to revoke probation and execute the sentence must be “based on sound judgment and not just their will.” As such, a promise by a judge at sentencing or a prior probation violation can be grounds to disqualify that judge at a probation violation hearing. Some examples may help:

  • At the sentencing hearing when a judge is granting a downward dispositional departure and granting probation instead of prison, it is not uncommon for a judge to lecture to the defendant that he or she must take advantage of this opportunity and, that if the defendant violates any condition of probation, the judge will send him or her to prison.
  • At a probation violation when a judge is reinstating the defendant back on probation, again, the judge may tell the defendant that he or she will be sent to prison if they violate probation again.

In both instances, the judge has promised future consequences that absolutely negates his or her ability to be impartial at the future probation violation hearing. At that point, the future decision is not sound, but rather based upon their will to uphold the past promise of punishment. Thankfully, the Supreme Court has ruled that this sort of behavior is unacceptable, and has given defendants the right and option to seek disqualification of the judge.

This means that, if you were the subject of similar promises, you must take certain actions to have this judge disqualified at a probation violation hearing. You should seek an experienced Minnesota probation violations attorney to help you enforce this right. A request for a voluntary disqualification by the judge may suffice. But, if not, a formal motion to the chief judge is required and, possibly, even an appeal to the higher courts.

With your liberty at stake, it’s imperative that you do everything you can to ensure that you get an impartial and objective judge, rather than one you know has it out for you.



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