Batter up for some judicial activism.

AuthorHerman, Gregg


The term "judicial activism" is commonly thrown around to disparage judges. It generally is used to accuse courts of being too aggressive or too liberal. A recent court of appeals decision contains an element which raises an interesting question.

In State v. Liebzeit, 2021AP9 the court of appeals reversed the trial court for modifying a sentence of life imprisonment without parole. The same judge who imposed the original sentence, the Hon. John A. Des Jardins, apparently changed his mind.

According the Court of Appeals decision, in 2019, after attending a judicial education seminar at which scientific research on brain development in young adults was discussed, Judge Des Jardins "took it upon himself" to write to the Liebzeit's appellate counsel (and the state) suggesting they consider a modification of the 1997 sentence based on new evidence. Liebzeit took the judge up on the suggestion and filed a postconviction motion alleging two alleged new factors: (1) new scientific understanding of brain maturity in adolescents; and (2) Liebzeit's brain damage from his inhalant use.

Judge Des Jardins presided over the proceedings and granted the motion, modifying Liebzeit's sentence to make him eligible for parole in 2023.

The appellate court reversed. They noted that the presentence investigation report (PSI) in 1997 outlined Liebzeit's history of drug use, including his use of inhalants. In fact, at Liebzeit's 1997 sentencing, his history of drug use inhalant addiction was referenced numerous times. The appellate court concluded that "[E]xisting case law prohibits the circuit court from relying upon scientific research on brain development in emerging adults as a new factor providing a basis for sentence modification because the research and its conclusions were well known at the time

of Liebzeit's sentencing in 1997."

For the purpose of this column, I'm not interested in the legal issue of a change in circumstances other than the unusual circumstance of a court taking the initiative of suggesting a strategy to a party in the case and then presiding over the subsequent proceedings. While neither question is raised in the court of appeals decision, they are unusual.

Judge Des Jardine's actions seem to violate Chief Justice Robert's definition of the role of a judge: "Judges are...

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