Thursday, July 15, 2010

Wisconsin's "Baby Mama" Ruling, Reversed.

The Milwaukee-Wisconsin Journal-Sentinel is reporting that the Wisconsin Supreme Court unanimously reversed a Court of Appeals decision tossing out a drug sentencing because of the sentencing Judge's use of the expression "Baby Mama" in a colloquy with the drug dealer.  Here's reporter Bruce Vielmetti's account:

"Wisconsin's infamous 'baby mama' case got a new spin Wednesday when the state Supreme Court backed a judge's use of the phrase at a sentencing and reversed an appeals court decision that had said the defendant deserved a new sentencing because of the judge's comments. In a rare 7-0 ruling, the court rejected the appeals court notion that if a reasonable observer might think racial or gender stereotypes influenced the trial judge, Landray Harris deserved a new hearing. Rather, the high court found, Harris needed to show by clear and convincing evidence that then-Circuit Judge Joe Wall did base his sentence on such inappropriate factors, and the justices found he did not.

'Race was never a factor in this case, and Harris' sentencing attorney told your newspaper as much,' [former-Judge Wall] said, referring to the original coverage of the appeals court ruling in January 2009. 'The Supreme Court using simple common sense and following established law found that two judges from the court of appeals lifted out of context four of my words from two separate sections of a 32-page transcript and twisted the plain meaning of those words into something offensive,' Wall said.

Harris, 24, pleaded guilty to possession of cocaine with intent to deliver. He had no prior record. At sentencing in August 2007, Harris told Wall he was not working but cared for his then-2-year-old daughter. Wall asked about the child's mother - whom he referred to as the 'baby mama - and noted that she both worked and attended college.

'Where do you guys find these women, really, seriously,' Wall said, according to a transcript. '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?'

Wall sentenced Harris to two years in prison to be followed by three years of supervision.

In January 2009, Court of Appeals Judges Joan Kessler and Patricia Curley ruled that Harris, who is black, could reasonably infer that Wall's comments revealed a bias, so he deserved a new sentencing. The opinion, with its lengthy chunks of the transcript from Harris' sentencing, went nearly viral on the Internet. 'What concerns us is the reasonable perception of an African-American defendant, or an observer, that the sentence was imposed at least in part because of race,'  Kessler wrote for the majority in a 2-1 decision. Judge Kitty Brennan dissented.

The Supreme Court soundly rejected that standard."
Hhmmmmmm, racist Judges?  That never happens in America.  Certainly it sounds like former-Judge Wall was talking about his perceptions and bias and that those views underlay his thinking and approach to the world; but, here's the key, the Judge appears to have set aside those attitudes when it came down to actually applying the sentencing law to the facts.  In the law, if the Judge erred with his remarks, it was "harmless error."  Nonetheless, how harmless are the remarks when they become "notorious" and generate two appellate decisions?

I've heard this sort of colloquy in court many, many times over the years.  Often times the judge speaking was African-American . . . you ever see Judge Joe Brown?  They pay Judge Judy 45 million dollars a year for this sort of quip with the parties in her make-believe courtroom.

I think this sort of dialogue also is a Court dialogue is a common expression of judicial frustration with a dysfunctional society, but also perhaps an inappropriate deviation from what is supposed to be blind justice.  Oh: the pic, is the rapper NeYo with his Baby Mama's Baby.  One other note:  the Wisconsin Supreme Court has been in a state of near-anarchy over the Justice Gabelman election/disciplinary charges previously looked at on Bad Lawyer, it's notable that the badly-fractured bench was able to find some unanimity in this case.


  1. Did you read the ABA Journal rport about how the Wisc justices issued different opinions all under different case numbers in the Gableman case? Gableman ran really obnoxious lying commercials, Willie Horton stuff. Gableman doesnt belong on any bench.


  2. Baby Momma Drama no mo. Good job BL

  3. The Supreme Court was unanimous in finding the court of appeals "baby mama" judges made it all up.. Although the concurrence used a slightly different standard, they too found that a "reasonable person" would not feel race played any role in the sentencing. Common sense.

  4. I think this sort of dialogue also is a Court dialogue is a common expression of judicial frustration with a dysfunctional society, but also perhaps an inappropriate deviation from what is supposed to be blind justice.
    Lawyer In Wisconsin

  5. Jad Smith--

    Thank you for your comment. I agree.