Local Judge’s Frustrated Outburst Creates Mistrial

By Thomas B. Scheffey
The Connecticut Law Tribune
New York Lawyer
August 17, 2009

In many professions, reaching quick conclusions based on minimal factual knowledge is a sign of expertise – even wisdom. But for a judge, it’s a serious danger. If it appears to be pre-judging – that’s the basic meaning of prejudice.

An Appellate Court panel has ruled that Judge Trial Referee William Wollenberg may have at least given the appearance of pre-judging a case after he let loose a tirade at a father who was trying to maintain parental rights.

The Appellate judges ordered a new trial, saying that Wollenberg, a Hartford juvenile judge who is also the chief administrative judge for Connecticut’s judge trial referees, gave the appearance of having "preconceived notions" about the father’s sincerity.

In February of last year, Wollenberg was presiding in a termination of parental rights case in which the mother of 10-year-old Nathan B. was seeking to nullify her ex-husband’s legal fatherhood.

The mother had remarried, and was hoping to clear the way for her new husband to adopt Nathan. The paternal father had spent nine of those 10 years in jail. That morning, he was agitated -- fidgeting and gesticulating to his court-appointed lawyer, Jonathan D. Chomick, of Plainville’s Mastrianni & Segulgic.

Wethersfield lawyer Jonathan W. A. Ruhe was presenting the mother’s case for termination, and had already questioned two witnesses. Judge Wollenberg reprimanded the father for being uncontrolled and disruptive. The father asked to address the judge. "Your Honor, I apologize. It’s just that I’m not trying to in any way to make undue gestures or motions—I’m just concerned about the outcome of this and I’m very involved in this case and I’m . . . ."

"Don’t get me going, please," countered Wollenberg. "You’re here today, concerned about the outcome. The child is 10 years old. You were with him for one year. And you’re very concerned today? After nine years? Somebody who cared would not stick himself in jail and stay there so he couldn’t see his child."

Wollenberg added that he was "sick of these people who come in and say, `Oh, I really care. I haven’t seen him in nine years, judge, but I really care.’ Check with your attorney see what he has done in the last nine years with his family and how he has worked. Check with anybody here. They tended to their families."

‘Difficult Decision’

Over lunch, Chomick, the attorney for the father, thought long and hard about the morning outburst, and what he should do.

"It’s a tough motion to make, as an attorney. I’m in front of that judge a lot, and I have a good relationship with him," Chomick said in an interview. "It’s always a difficult decision to make. I’ve been in front of Judge Wollenberg countless times. But if you have a client to take care of, I guess it’s an easy decision to make."

After the lunch recess, Chomick moved for a new trial. Wollenberg denied the motion, saying the father had initiated the exchange.

In May, Wollenberg ruled that the father’s rights should be terminated. The father appealed, claiming the judge had violated a cardinal rule of judging.

Chomick invoked the rule in the Code of Judicial Conduct, Canon 3 (c) (3), which says a judge should disqualify himself in a proceeding "in which the judge’s impartiality might reasonably be questioned."

Comparing the father’s parenting abilities to that of the attorneys in the courtroom, Chomick argued in his appellate brief, was "highly improper."

The father was characterized as part of a group of people whose concern for their children is artificial and disingenuous and "a waste of the court’s time," Chomick contended.

Ruhe, the mother’s attorney, conceded in his brief that Wollenberg "may have briefly lost [his] temper due to the father’s behavior in the courtroom," but overall conducted a fair hearing, and was "quite indulgent" in allowing the father to present his case.

Not A ‘Robot’

The appeal was decided by Appellate Judges Robert E. Beach, Socrates H. Mihalakos and Richard A. Robinson. They cited the 1986 case of Keppel v. BaRoss Builders, which notes that a judge "is a human being, not the type of unfeeling robot some would expect the judge to be," and that heated comments don’t necessarily rise to the level of disqualification for prejudice.

But, the panel wrote, the problem with Wollenberg’s statements was that they were made before the father even had a chance to testify. "Although isolated venting of frustration may not require reversal, a reasonable person hearing the court’s comments in the present case could interpret those remarks as expressions of a preconceived view of the credibility of the respondent, who had not yet testified," the Appellate Court decision stated.

In ordering a new trial, the panel emphasized that it was making no comment on Wollenberg’s actual lack of impartiality, which was not questioned, but "only with the appearance to an objective observer."

Ruhe said his client is mulling her option to seek Supreme Court review, and had made no decision. Ruhe said he wasn’t surprised that his opposing counsel filed an appeal after his client was "dressed down," but that he was surprised by the Appellate Court decision. "It was very disappointing for my client to lose on something that had nothing to do with the actual facts or law of the case," Ruhe said.

Chomick, meanwhile, said he still has a lot of respect for Wollenberg. "As a trial referee, he hears hundreds of cases, and you’re bound to get frustrated," Chomick said.