For [Judge Joseph] Wall to have his motives and remarks impugned by Joan Kessler and Pat Curley is like Muhammad Ali having his boxing technique criticized by Doink the Clown.Evidently Wagner, blinded by the impulse to unseat "Democrat activist" judges, didn't read the opinion too closely, and overlooked the standard of review the appeals courts apply in these cases (the latter is especially strange, as Wagner reproduced it at his own blog).
Or perhaps the former practitioner has forgotten what a disjunctive clause is. The first question presented to the appeals court, which elements are derived from Wisconsin Supreme Court case law, was:
Did the trial court's comments suggest to a reasonable observer or a reasonable person in the position of the defendant that the court was improperly considering Harris's race?Boldface added. In other words, it doesn't matter what Jeff Wagner thinks, as reasonable an observer as he might believe himself to be.
What controls are the defendant's — an African-American man, in this case — perceptions. And the trouble with Judge Wall's extended colloquy at sentencing is that he was not only referring specifically to the defendant and the defendant's girlfriend in particular, he was typecasting both of them as members of classes of persons:
THE [TRIAL] COURT: Where do you guys find these women, really, seriously. I’d say about every fourth man who comes in here unemployed, no education, is with a woman who is working full-time, going to school. Where do you find these women? Is there a club?(Not every fourth man who presents himself to be sentenced after having admitted guilt — as was the case with this defendant — it should be noted. Just every fourth man haled into court for whatever reason, some of which are relatively flimsy to begin with.)
Furthermore, the appeals court went out of its way to affirmatively exonerate Judge Wall from any intentional impropriety.
Once again, that doesn't matter either. And Wagner argues that Judge (now-Assistant United States Attorney) Wall is extremely bright. Unquestionably. Except that, too, is entirely irrelevant.
Where other "guys" (plural) find "these women" (plural) is of no consequence* to the penalty a particular defendant faces. This defendant reasonably perceived that his penalty was affected by the judge's apparent typecasting, and the court of appeals agreed.
It's hardly such an outrageous opinion as Wagner purports to think. It's the result of smart and effective lawyering, is what it is. But without perpetual outrage, there would be no conservative radio.
* Antecedence, more accurately.
eta: So predictably, Charlie Sykes boards the bandwagon. :yawn: