What happens when you are assigned a judge and you want someone else? The Wisconsin Statutes provide a right to substitute on your judge, and although you don’t get to “pick” your new judge, filing a substitution request can make a big difference in your case.
The Right to Substitution
The right to substitute on your judge is found in § 971.20 of the Wisconsin Statutes. There are certain specific time limits that must be adhered to or else the right is waived. The substitution request must be filed before making any motions and before arraignment. Arraignment is the time in a case when a plea is entered, so in misdemeanor cases, this will often be at the initial appearance. In felony cases, this will be right after the preliminary hearing. Therefore, it is important to discuss the right to substitute with your attorney prior to entering a plea.
It is also important to note that the right to substitute is an absolute right. The defendant does not have to have a reason for wishing to substitute, and the defendant does not need to allege or show actual prejudice.
Some counties have annual judicial rotations. This means that a defendant could be assigned a new judge while the case is pending. If the defendant has not already exercised the right to substitute, the defendant is allowed to substitute on the newly assigned judge within 15 days after actual notice of the new assignment.
Finally, when there are multiple defendants charged in a single complaint or information, all of the defendants must join in a single request for substitution. This requirement can be avoided, however, if the defendants are severed prior to trial. As long as the defendants have not previously exercised their right to substitute prior to severance, they will be allowed to substitute after severance has been granted.
When to Substitute
The next question is when should you substitute versus when do you stick with your assigned judge. A lot goes in to deciding whether you should substitute: who are the possible new judges, what is the assigned judge’s history in your type of case, and will a new DA be assigned to the case. It’s no secret that some judges are more lenient or favorable to defendants, just as it’s no secret that some judges come down hard on certain offenders. Whether to substitute is a strategy decision that must be made carefully. The attorneys at Van Severen Law Office know the tendencies and reputations of judges handling criminal cases throughout Wisconsin. We can help you decide whether substituting on your assigned judge is appropriate. If you have questions related to substitutions or questions about your case in general, contact us today.