A baby mama postscript

The erudite David Ziemer in the Wisconsin Law Journal offers:

A divided panel of the Wisconsin Court of Appeals recently vacated a sentence based on comments by the white sentencing judge that the court found could be construed as exhibiting racial bias against the black defendant.

I will admit that the statements could be construed in this way.

And according to the standard of review applied by the court of appeals, that's about as much as it takes.

Also this morning, the JSOnline links to something called the Badger Blogger, which it describes as "opposite" to this one. I'm not sure what that's supposed to mean, but it's certainly opposite in the sense of failing to address the central question(s) presented in the appeal.

What you will find there is vitriol and personal attacks against the two-judge majority functionally identical to that available at the online dwellings of suburban AM radio shouter Charlie Sykes.

A letter from a Mequon attorney describes the opinion as "defaming" the sentencing judge, Joseph Wall. With all due respect to counsel, this, too, misses the point, which is the defendant's perceptions.

Mr. Wall is by every account among the cream of the legal profession and absolutely nothing in this opinion diminishes that estimation.

Still more evidence of Mr. Wall's professional and personal integrity can be found in this superb opinion piece from several years ago.

At this Badger Blogger, the dissenting opinion of Judge Kitty Brennan is praised — without argument or even explanation — yet the dissent completely ignores the standard of review applied by the majority.

That is, the dissent claims that the defendant failed to meet his burden of proof without even mentioning the standard against which the majority measured that burden. That's very strange.

Judge Brennan goes to some lengths to describe why she fails to discern a racial subtext, but not a joule of energy is expended on the question of whether the African-American defendant — the one with the constitutional right to due process — may reasonably have done so, which was the threshold question presented to the court.

The dissent puts forth a number of other odd observations, including the fact that the sentencing court never referred to the male defendant as a "baby mama." It also makes the puzzling claim that the judge's "you guys" did not include the defendant. Set theory would appear to indicate otherwise.

The dissent categorically asserts that neither comment provided any basis for the sentence imposed, which raises at least two (rhetorical, in my judgment) questions: 1) How does she know that? and 2) Why, then, did the judge deliver them to the defendant immediately prior to pronouncing the sentence?

The thrust of the dissent is that because Judge Wall satisfied all of the required considerations at sentencing — which the majority also expressly acknowledges — and because the author of the dissent personally discovers no racial subtext to the judge's remarks, then the sentence must stand.

Not once is the possibility of the defendant having reasonably understood things differently even engaged.

In short, it's not the most powerful objection on record, to say the least, although it might not unfairly be said to include a tacit admission that Judge Wall's remarks were less than well advised.

Milwaukeeans (and coddled suburbanites like Charlie Sykes and his unquestioning followers) ignore at their peril the resentment in the black community for the justice system in their county. Whether the resentment is warranted and to what degree are, of course, separate questions. But it's out there; ask any criminal defense attorney.

Among the unstated premises in the State v. Harris opinion, it seems to me, is that the sentencing judge's commentary wasn't creating an impression with the defendant, it was reinforcing one.

One final reiteration: it's the defendant's perceptions of the sentencing pronouncements that are at issue here, not what Judge Wall meant by them. I believe we may confidently treat as axiomatic that his intentions were beyond reproach and, as I said, nothing in the court of appeals' opinion undermines that assumption.

Quite the opposite, in fact. It's supported.

And let's not forget that in Wisconsin, appeals court judges are elected, so in some sense they were put on the bench to do the will of the people. And the will of the people is better served when, on a close and subjective question such as the one presented here, the alleged error is committed on the side of caution, and this outcome was clearly informed by and reflective of that caution.

On that note, it's very important to remember that this was a sentencing, not a conviction, and the demonstrated infirmity of the vacated penalty will take all of 45 minutes to rectify (unless the State appeals and the Supreme Court takes up the case, which is possible).

It's also possible that Harris will end up with the same or even a more severe sentence. On that account, it's a roll of the bones. Presumably the challenged sentence was greater than anticipated, otherwise his attorney would likely have advised him to have taken it and ran.

Finally, David Ziemer raises a compelling point:

When an identical [sentencing hearing] transcript shows reversible error in one case, but an appropriate exercise of discretion in another, depending solely on the race of the defendant, the law is standing on shaky footing.

It's a dilemma, but for what it's worth, I'm pretty much convinced the court of appeals did the prudent thing under the circumstances.