---
title: "When Structural Error Applies for Some"
id: "55777"
type: "post"
slug: "when-structural-error-applies-for-some"
published_at: "2025-12-02T17:13:52+00:00"
modified_at: "2026-04-22T09:28:11+00:00"
url: "https://justice-denied.org/when-structural-error-applies-for-some/"
markdown_url: "https://justice-denied.org/when-structural-error-applies-for-some.md"
excerpt: "Table of Contents 6mn read When Structural Error Applies for Some Minnesota’s Supreme Court has long held that when a judge independently investigates or considers facts outside the record, the resulting violation is structural error requir…"
taxonomy_category:
  - "Craig Stevenson"
  - "Independent Judicial Investigation"
taxonomy_post_tag:
  - "appellate decision analysis"
  - "due process violation"
  - "independent judicial investigation"
  - "State v. Dorsey rule"
  - "structural error in Minnesota courts"
---
Table of Contents

6mn read

## When Structural Error Applies for Some

**[Minnesota’s Supreme Court](https://mncourts.gov/supremecourt)** has long held that when a judge independently investigates or considers facts outside the record, the resulting violation is **structural error requiring automatic reversal**. That rule, established in *State v. Dorsey* and reaffirmed repeatedly over two decades, is one of the clearest lines in Minnesota’s due-process jurisprudence.

Yet in two 2025 decisions—*State v. Jones* and *Stevenson v. Stevenson*—the Minnesota Court of Appeals confronted **nearly identical judicial conduct involving extra-record fact-finding**. The outcomes were the same: **no structural error found, and no relief granted.**

Even more noteworthy: **Judge Tracy M. Smith sat on both panels.**

## **The Rule: *Dorsey* (2005) and Its Reaffirmation in *Duol* (2025)**

In [State v. Dorsey](https://justice-denied.org/pdfviewer/state-v-dorsey-c6-03-197/)
 (2005), the Minnesota Supreme Court established a bright-line rule:

- A judge may not independently investigate facts outside the record.
- A judge who does so becomes a witness in their own proceeding.
- This is **structural error**, requiring **automatic reversal**.
- No prejudice showing is required.

Twenty years later, in September 2025, the Supreme Court issued [State v. Duol](https://justice-denied.org/pdfviewer/state-v-duol-a22-0748-a24-1754/)
, reaffirming the rule with unmistakable clarity:

> **A district court judge’s deliberate independent investigation and consideration of extra-record facts violates the constitutional right to an impartial judge and constitutes structural error requiring automatic reversal.**

This standard is absolute—not discretionary, contextual, or optional.

## ***State v. Jones* (Oct. 13, 2025): Court Cites *Dorsey* and *Duol* and Recites the Structural-Error Rule—but Declines to Apply It**

In [State v. Jones](https://justice-denied.org/pdfviewer/state-v-jones-a24-1451/)
, the district court faced a defendant who failed to appear for trial. To determine whether the absence was voluntary, the judge:

- Called a witness under Rule 614,
- Reviewed **MNCIS criminal-history records**,
- Relied on past warrant and court-system information not introduced by either party.

These were **extra-record facts**, obtained through the judge’s own research.

Importantly, the Court of Appeals:

- **Cited *Dorsey***,
- **Cited *Duol***,
- Explicitly acknowledged that structural error requires automatic reversal.

Yet the panel concluded:

> **The district court’s investigation did not violate Jones’s right to an impartial judge.**

Rather than applying the structural-error framework, the panel characterized the judge’s conduct as part of a permissible [Finnegan](https://justice-denied.org/pdfviewer/state-v-finnegan-a08-0777/)
 inquiry—even though *Finnegan* does **not** authorize judicial review of MNCIS records or other extra-record materials.

Thus, despite citing *Dorsey* and *Duol*, the Court of Appeals:

- Reframed the judge’s actions as required by procedural necessity,
- Did not apply strict structural-error analysis,
- Affirmed the conviction.

## ***Stevenson v. Stevenson* (Jul. 28, 2025): Extra-Record Facts Again—But No Appearance of Impropriety**

**And the Court of Appeals Forfeits the Structural-Error Argument in a Footnote**

Three months earlier, the Court of Appeals confronted a similar issue in [Stevenson v. Stevenson](https://justice-denied.org/pdfviewer/stevenson-v-stevenson-a25-0186/)
.

During a recusal hearing, Judge Miller independently researched and introduced extra-record employment information about his law clerk to rebut the Stevensons’ motion:

> “Mr. Morrison started with Judge Mark Hansen in November 2013 and became Judge Benson’s clerk in September 2016.”

These statements:

- Were not provided by either party,
- Were not in the record,
- Were obtained by the judge independently,
- And were used to undermine the recusal motion.

Under *Dorsey*, this conduct falls squarely within the definition of structural error.

However, unlike *Jones*:

- ***Duol* had not yet been decided** (it would be released five weeks later).
- **The panel did not cite *Dorsey*.**
- **The panel conducted no structural-error analysis whatsoever.**

Even more extraordinary—**the Court of Appeals declared the independent-investigation argument *forfeited in a footnote***, despite the fact that:

- Appellants raised it repeatedly,
- Provided sworn declarations,
- Submitted supporting evidence,
- And made it the central basis of their recusal and vacatur motion appeal.

To our knowledge, **this is the first time in Minnesota appellate history that a structural-error / independent-judicial-investigation argument has ever been deemed forfeited.**Structural error is **never** subject to forfeiture; it is one of the uniquely preserved categories of constitutional violations.

Yet the panel disposed of the argument—**without analysis, and without acknowledging that structural error cannot be forfeited.**

Instead, the opinion concluded:

> **“We discern no appearance of impropriety.”**

Judge Miller’s extra-record assertions were treated as benign contextual details—not the judicial fact-finding expressly prohibited by *Dorsey*.

And once again, the result was affirmance.

## **Same Conduct — Same Outcomes**

| Judicial Conduct | Jones | Stevenson |
| --- | --- | --- |
| Judge independently investigates facts? | Yes | Yes |
| Facts obtained outside the record? | Yes | Yes |
| Facts introduced into the proceeding? | Yes | Yes |
| Structural-error analysis applied? | No (despite citing Dorsey/Duol) | No (Dorsey cited nowhere; Duol not yet decided) |
| Outcome | Affirmed | Affirmed |
| Panel included Judge Tracy Smith? | Yes | Yes |

Across both cases:

- The judge conducted extra-record fact-finding.
- The judge used those facts to resolve core issues (voluntary absence / recusal).
- Supreme Court precedent required structural‐error analysis (*Dorsey* then; *Duol* later confirmed it).
- The Court of Appeals declined to apply that analysis.
- Relief was denied.

And in both cases—**Judge Tracy M. Smith sat on the panel.**

## **Why Judge Tracy Smith’s Presence on Both Panels Matters**

##### **A. Consistent Outcomes Across Similar Violations**

When the same judge participates in two cases involving the **same type of constitutional violation** and reaches the **same outcome**—finding no error despite Supreme Court guidance to the contrary—it strongly suggests:

- A consistent interpretive stance at odds with structural-error doctrine,
- A tendency to reclassify extra-record judicial fact-finding as permissible,
- A reluctance to find any impropriety in a judge’s conduct regardless of context.

##### **B. Precedential Treatment**

In both cases:

- The panel reframed the conduct as innocuous or procedurally necessary,
- The structural-error framework was not applied,
- Extra-record facts were minimized rather than treated as violations.

In *Stevenson*, the omission of *Dorsey* is striking, given the similarity between Judge Miller’s actions and the judicial behaviors condemned in that case.

In *Jones*, although *Dorsey* and *Duol* were cited, the panel did not apply their holdings.

##### **C. Impact on Public Confidence**

Structural-error doctrine exists to protect the integrity of the judiciary. When appellate courts:

- Decline to apply the governing rule (*Jones*),
- Ignore the rule entirely (*Stevenson*),
- And the same judge participates in both panels,

public confidence in neutral, predictable appellate review is weakened.

## **Why This Matters**

The right to an impartial judge should never depend on:

- Whether the case is civil or criminal,
- Whether the litigant is a defendant or a plaintiff,
- Which Court of Appeals judge is assigned to the panel.

Yet in 2025, Minnesota’s Court of Appeals treated extra-record judicial fact-finding in *Jones* and *Stevenson* as **non-violations**, even as the Supreme Court’s existing precedent (*Dorsey*) and later decision (*Duol*) make clear that this conduct constitutes **structural error**.

In *Stevenson*, the problem was compounded by a **footnote “forfeiture” ruling** never before seen in Minnesota appellate history.

The contrast is stark.  
 The implications are troubling.  
 And the public—especially those directly affected—deserve a judiciary that applies its own constitutional rules consistently and transparently.

🤖This article was authored by Justice-Denied.org with the assistance of artificial intelligence.

🔗More on Minnesota judicial ethics and court reform: [justice-denied.org](https://justice-denied.org/)

## Related Content

- [Forfeiture That Wasn’t](https://justice-denied.org/forfeiture-that-wasnt/)
- [Panel Shopping in Plain Sight?](https://justice-denied.org/panel-shopping-in-plain-sight/)
- [State v. Jones: The Appellant’s Brief Draws a Line Minnesota Shouldn’t Cross](https://justice-denied.org/state-v-jones-the-appellants-brief-draws-a-line-minnesota-shouldnt-cross/)
- [When Familiarity Breeds Bias](https://justice-denied.org/when-familiarity-breeds-bias/)
- [When the Courthouse Proves the Point](https://justice-denied.org/when-the-courthouse-proves-the-point/)