The Wisconsin Court of Appeals is currently reviewing the sentencing of Rory Kuenzi.
At issue is whether Waupaca County Judge Philip Kirk’s comments during sentencing were evidence of judicial bias.
In January 2011, Kirk sentenced Kuenzi to 23 years in prison after a jury found him guilty of hit-and-run involving death and homicide by intoxicated use of a vehicle.
Kuenzi appeared before Kirk again in November 2011 after pleading no contest to three felony counts of cruelty to animals. Kuenzi and two other men had used their snowmobiles to run down and slaughter deer in the town of Lind in January 2009.
In the deer-killing case, Kirk sentenced Kuenzi to 11 years in prison to be served concurrently to the OWI homicide sentence.
Kuenzi’s sentence in the deer-killing has been appealed on the grounds that Kuenzi’s constitutional right to due process was violated by judicial bias.
Citing prior case law, Jefren Olsen, the assistant state public defender, noted in his appeal brief, “Due process requires a neutral and detached judge. If the judge evidences a lack of impartiality, whatever its origin or justification, the judge cannot sit in judgment.”
Olsen argues that Kirk’s comments during the sentencing in both cases show evidence of actual bias, or at least the appearance of bias.
When Kirk sentenced Kuenzi after a jury convicted him of OWI homicide, Kirk described the defendant as “a sociopath” and “beyond redemption.”
“Your life has been less relevant than finding couch change,” Kirk told Kuenzi at the hearing. “I think you are a knuckle-dragging Neanderthal, fissiped. In plain English, it means that your short existence has been a goat rodeo of abject, wretched and despicable failure.”
During the OWI homicide sentencing, Kirk pointed to Kuenzi’s claim to an investigator that he had killed the deer by running them over with a snowmobile because he was a convicted felon and prohibited from using a gun to hunt.
“Your comment is absurd,” Kirk said. “You put something like that on a resume if you’re applying to a village looking for an idiot. Your behavior in that incident was felonious and depraved.”
Kuenzi was charged with the 2004 OWI homicide of Kevin McCoy in November 2009. In January of that same year, he was charged with six felony counts of cruelty to animals and with the theft of the snowmobile he used to kill the deer. He was also cited for hunting out of season.
Kuenzi’s public defender, Troy Nielsen, argued in May 2009 that the felony animal cruelty charges should be dismissed because state law explicitly prohibits charging a hunter with animal cruelty.
Kirk dismissed the felony charges and criticized the prosecution for its tendency to overcharge cases. The hunting citations seemed to reinforce the defense’s argument that Kuenzi was acting as a hunter.
The prosecution appealed Kirk’s dismissal of the felony charges.
About one month after Kirk sentenced Kuenzi on the OWI homicide case, the Wisconsin Court of Appeals overturned Kirk’s dismissal and ordered that the circuit court reinstate the felony charges and move the case forward.
Kuenzi’s defense counsel subsequently filed a motion requesting that Kirk recuse himself from the case due to his earlier comments.
At a hearing on Oct. 12, 2011, Kirk denied Nielsen’s motion for recusal.
Regarding his statements at the homicide sentencing, Kirk said, “I was very direct. I was very blunt. Sentencing is not a charm school experience. Judges are required to meet certain standards to demonstrate an exercise of discretion that supports the sentence that was imposed.”
Kirk said his statements were based upon the evidence presented at the trial, the jury’s verdict and his perception of Kuenzi’s character.
At Kuenzi’s sentencing in the deer-slaying incident, the prosecution asked for two years of prison and two years of extended supervision on each of the three felony convictions. The sentence was to be consecutive to the 23 years Kuenzi was already serving for the homicide.
Kuenzi’s defense attorney asked that he be sentenced to a total of one year in jail, basically time served, for all three counts.
Kirk sentenced Kuenzi to 11 years in prison to run concurrent to his prior sentence.
After again noting his disappointment with the way the prosecution had overcharged the case, Kirk talked about receiving more than 80 letters, emails and calls regarding the deer case. He noted that he received few if any letters regarding the OWI homicide.
“One of my reasons for imposing a concurrent sentence is to educate the public that when there is a human death or injury, from criminal behavior, that’s where the outrage should be,” Kirk said.
While Kirk stressed the greater severity of killing a human, he said the killing of the deer was indicative of Kuenzi’s sociopathic personality and his threat to the public.
“Sadly, those charges could not have been included at the time you were sentenced on your OWI homicide,” Kirk told Kuenzi. “Of course, I knew at that time what I would impose on these particular charges if I had the opportunity to do so, and I’ll do the same thing today that I would have done then.”
In his appeal, Olsen argues Kirk’s statements indicate he prejudged what Kuenzi’s sentence should be.
At the time of the homicide sentencing, Kuenzi had not yet been convicted of the animal cruelty charges, and the Appeals Court had not yet issued its opinion allowing prosecution of the charges to proceed, Olsen said in his brief.
“A reasonable person reviewing the court’s sarcastic and demeaning remarks in this case would conclude they show . . . a deep-seated antoganism, or at the very least an attitude toward Kuenzi that denied him even a shred of humanity,” Olsen said.
Olsen has asked that Kirk’s sentence be overturned and that a new judge be assigned to sentence Kuenzi.
In the state’s reply brief, Attorney General J.B. Van Hollen and Asstistant Attorney General Katherine Lloyd argue that critical comments about a defendant do not support a challenge to a judge’s impartiality.
Citing prior cases, the state argues, “The judge who presides at a trial may, upon completion of the evidence, become exceedingly ill disposed toward the defendant who has been shown to be a morally reprehensible person.”
Describing Kuenzi’s behavior in the OWI homicide and the deer-slayings as “abhorrent and vile,” the state argues the evidence precisely shows the accuracy of Kirk’s statements.
“The circuit court’s effusive amd colorful language condemning the behavior may have been strong, but it does not demonstrate actual bias,” the state said.
While noting a judge should scrutinize the individual circumstances of each case and defendant, the state said there was no new information, no new evidence or new witnesses called, regarding the deer-slaying case between the time he sentenced Kuenzi for the OWI homicide and when he sentenced him on the animal cruelty charges 10 months later.
As evidence of his impartiality, the state points to Kirk initially dismissing the felony animal cruelty charges, then imposing a prison sentence concurrent, rather than consecutive, to the 23-year sentence.
The state also quotes comments Kirk made when he denied Kuenzi’s motion for post-conviction relief and a new sentencing hearing before a different judge.
“The motion suggests that when sentencing judges speak they should speak as robotic, impotent puppets of convention. I don’t think so,” Kirk said. “If anyone believes that a court is impotent to voice judicial disgust, outrage, resentment, retribution or even sarcasm or like sentiments, then a court would no longer be a lawful vehicle to express those public concepts or beliefs.”
Kirk said a judge must be “free to say directly and bluntly those things which reflect a community’s beliefs.”
All briefs in the appeal of Kuenzi’s sentence in the deer-slaying have been filed. The Wisconsin Court of Appeals District V is now reviewing the briefs and a judgment is pending.
An appeal has also been filed regarding Kuenzi’s OWI homicide case. The court is waiting to receive the state’s reply brief.