you high profile coalition of federal state local law enforcement agencies their representatives met privately with the administrative law judges that here probation revocation hearings they told them they had identified the ten most serious chronic violent offenders in the community that's undisputed on the speed of that they then at this hearing as the judge who decided mr olson's hearing to suffer count of one force meant instructed the judges that they should revoke probation upon any violation violations should be stripped treated as sort of last straw and it would be expected that probation would be revoked it's also undisputed that mr alston's probation revocation hearing l g whitaker quickly recognized that mr alston was one of the ten individuals that she had previously been warned about by law enforcement in the private meeting with y jazz and she didn't candidly admitted on the record that this meeting with the administrative law judge as it would be relevant her decision whether to revoke probation or whether to impose lesser lesser matters so what's wrong with that well your honor the due process clause forbids an objective way high risk of bias or prejudgment and when exposure to the facts of the case before hand create that risk there's a due process violation regardless of whether or not well the meeting that they didn't discuss this this case they did not discuss the specific facts of mr alston's cases but this was a meeting about ten individuals hypotheticals and your client happened to be one of the ten most wanted are sober exactly this is not a blanket policy extending a law and this is a law enforcement agency that is targeting ten specific individuals not unnamed individuals who might fit into some general category that identified them comparatively as the ten most serious offenders in the community and then instructed the judge is that it would be expected that revocation  program was intended as a last chance phylicia should be treated should show as a sort of last straw soup it would it would be expected that they the ten individuals wouldn't be given another chance in other words day the ten gestures their conservative views about an address but and that may influence the judges judges may have and i trust cases coming now or be in the middle of an interest case but i don't think it's ever been suggested that they have to recuse themselves because they've been exposed to what me oh my what may be a partisan view of a class of cases that does come before chargers end because brainwash right the educator wants to convince you of something they want to give in to that all syrians are bad record we've seen this explains a lot by the way so  so we don't try to insulate the judges from being influenced by a whole variety of of sources including the prosecutors yes but we do try to insulate them from being exposed to represent as if one of the party trying to influence  hold meetings with judges at which they tell them their concerns about crime and this that they are permitted to do that under honest hypothetical but that's very know you're on a date that the record does not reflect that the facts of any particular individual's case was discussed here what was discussed was that one person a group identified the ten worst individuals on probation and then first presented these individuals cases in terms of this topic first impression and then instructed the judge is that revocation would be expected for any violation and that's that's what occurred here i may see of a human who agree with me that judges are correct there is that presumption and he'll say what her said that she would be unbiased here we think i urge this court to look at the totality the facts and that those facts overcome the presumption importantly we're not we're not interested in whether l j whitaker subjectively was biased or whether she got the right result in this case or whether she did a good job or a good opinion completely irrelevant were considering the facts objectively in their totality is there a high objective risk of pre judgement or bias is there a risk that she's going to have potentially afford more weight this private meeting with juan foresman than she would to actual the evidence presented at the hearing and this is of course why it's parte communications are frowned upon and why visit the petitioner has failed to overcome that presumption because in the words of caperton v massey coal company he has failed to prove that this is that rare exceptional case with quote extreme facts that create a quote serious risk of actual bias with regard to this particular case he has failed mr olson has failed to prove that judge would occur there was a serious risk that judge whitaker would abdicate for duty to consider the evidence presented before her to determine the facts and to independent the exercise  discretion he failed to prove that her attendance at a seminar that occurred five months before this hearing before mr olson even violated before there was this was to discuss the program that these that these agents at the rather these administrative law judges are going to necessarily learn about because they're considering revocation hearings and this is this obviously is highly relevant to revocation hearings if this program put people in intensive social services and treatment which obviously their sentencing guidelines new legislation and yes this was a specific program and yes mr that mr alston was one of the original participants but that was not mentioned and yes i will concede that they did recommend the officers who presented matter i believe there were two madison police offices highly recommended in that in in the words of judge  whittaker highly recommended revocation assuming that violations are actually proven for those who are in this program because it is a last chance that these are people with a long history of cited in my brief the civil case that mr alston brought against the city of madison regarding this program and the findings in that case specifically show was on a summary judgment motion but the records in that case said with regard to this program that it ministry of law judges retained the discretion invested in them by law and obviously under wisconsin law judge whittaker had to independently exercise discretion she couldn't meet just blindly accept someone's recommendation for revocation without making an independently determined independent determination based on the facts at that recommendation in a sense she was free to say you know i know this as these officers in the essay you program think these are such violent offenders that they should always be revoked but this case doesn't present those facts but these days of specialists in this specialists yes they are specialists they're part of the wisconsin department of hearings and appeals which is part of that was the large wisconsin department of administration which is separate from the department of corrections which actually initiate the revocation proceedings to do so they do and this is all they do and it's not just revocation proceedings that it can be and other civil matters involving administrative review it's all administrators review basically and so they they take the revocation that that would violate wisconsin law and the judges know that they know that they have to follow certain procedures that the case law sets out very specific criteria they must follow when exercising discretion is more a c v brewer requires an informal hearing with sufficient record to enable the judge to properly exercise discretion wisconsin in the plotkin case i cited as very specific requirements in these judges kno that they require to follow his requirements regardless of what anyone recommends or regardless out strongly anyone recommends for or against revocation and that really is what comes down here too there's no question whitaker would have found out about his participation in this program after the april two thousand and twelve revocation hearing the fact that she found out about it at this general presentation five months earlier without but now not knowing that mr at that time that that the that he was involved in this not in learning for the first time of april here but she would have that because that would have been relevant obvious his participation in his unsuccessful participation in the program would be highly relevant to a her decision whether he committed file ations and if so be whether he should be revoked so to that extent his her knowledge of his participation his program was relevant to her decision but that doesn't make it bias that doesn't make it hopelessly  it was based on the independent evidence in her decision i think is that the put the proof in the putting that her thorough decision shows that she considered many facts before made  detailed actual determinations that were violations and then thoroughly considered alternatives to revocation before independently exercising discretion in favor of revocation even going so far as to say you know i did consider alternatives in this case there might have been alternatives if you would only admit that he committed these violations that the factual record clearly shows he did commit but he won't and he has this history and therefore my only alternative is revocation that was independent neutral neutral attached part of making these decisions so it's no answer to say that as some family will matter if wisconsin law allows it would appear to have discretion to work the process require  mr alston to show that she would necessarily follow the instructions that were given to her and by the you all mr also has to show is a risk considered objective lee a bias and prejudgment not meeting two things your honor it's both the content and the form in which this information was delivered before a new and a new hearing before an impartial judge that so you'll be free to say we've identified and we don't like him he's one of the worst p revoke that's on the speed of what they're not free to do is meet with the judge ahead of time instruct them how to rule say they've identified the ten worst thus creating a toxic first impression of ten individuals and and then the judge then candidly admits that this what that presentation was about is going to be relevant to what are now decision i understand your form arguments to stand the content why can't why can't a committee of prosecutors or what have and you know we learned from it that well this is very different than a mere exposure to a most wanted list or something like that and the key is that the due process clause requires considering all the facts in their totality not in isolation that i'm sorry you're constantly doing that as this is when they go to these conferences sponsored by a lot of universe you know a lot of law schools have programs for judges right so in you i think in them this is the rationale of the wisconsin state court of appeals relied on and it's wrong objectively unreasonable because this is far more prejudicial than a standard issue educational some are ten individuals private meaning want foresman and the judges hear their cases pending them as the ten worst instructing them how to rule in those cases that's not the kind of educational seminar the judges are regularly attending and that an order it's certainly not an order it's they said that permission should your about to continue violation it would be expected that probation would be revoked time violation one less factual point your honor the state court record is unclear as to w this meeting occurred and according to the state court records potentially sometime before mr olson was in custody in his companion civil rights case in discovery the s o u has admitted that this meeting occurred when he was in custody on on the same day that his probation revocation proceedings were initiated we of course don't know the time of day it's not in state court record going to be considered because at the deference does not apply here for numerous