Oct. 22, 2009 – Justices searched for a meaningful standard to measure the appearance of racial bias during oral arguments on Tuesday in the case of a Caucasian sentencing judge’s comments on the African-American defendant’s lifestyle and his “baby mama.”

In January, a divided Wisconsin Court of Appeals vacated Landray Harris’s sentence for possession with intent to deliver cocaine, holding that Milwaukee Circuit Judge Joseph R. Wall’s remarks could create a reasonable perception that the sentence was imposed at least in part because of race.

Specifically, the court of appeals pointed to the portion of the transcript in which the judge asked Harris in reference to his unemployment while the mother of his daughter works, “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?”

Later, the judge said, “Mr. Harris sits at home, gets high while his baby mama works and goes to school. I swear there’s a club where these women get together and congregate.”

The court of appeals cited these statements and their sarcastic tone as conveying an impermissible racial overtone. In the context of this case, the court found the references to “you guys” and “these women” to be “just half a step from the code word ‘you people.’” Likewise, the court was troubled by the use of “baby mama” in these circumstances.

‘Any reasonable person’

Arguing for the state, Assistant Attorney General Rebecca Rapp St. John criticized the court of appeals for failing to specify the perspective from which the judge’s comments should be considered.

The state suggested that a sentence is valid unless the sentencing judge’s comments “are such that any reasonable person who heard them would question the sentencing judge’s ability to sentence the defendant without considering race.”

But Chief Justice Shirley Abrahamson asked how well that standard might work in practice.

  “One of the things about ‘reasonable’ is that there are ‘reasonable’ people on both sides,” Abrahamson said. “Some may say it is reasonable to think it is racial and some may say it is reasonable not to think it’s racial, right? So if that’s it, if reasonable people can differ as to whether this is a racial thing, defendant loses? Defendant has to show that every reasonable person would think this is racial?”

St. John responded that the proposed standard was difficult to articulate, but that it should address her concern that   “two out of three court of appeals judges can look on Wikipedia at a couple of terms out of context and vacate a sentence based on that.”

“So I think the threshold has to be higher than just a reasonable person could think it,” St. John said.

‘Experiential’ or racial?

St. John protested that the court of appeals had taken the sentencing judge’s remarks out of context.

“Each comment must be read in the context of the sentencing transcript of the whole and each sentencing transcript must be read in the context of the record as a whole,” St. John said. “The court of appeals ignored context. It cherry picked a few comments out of a 32-page transcript and evaluated those comments without considering what came before them or the complete record.”

If the court of appeals had looked at the context, St. John argued that it would have recognized the sentencing judge was merely expressing “frustration with the number of people he personally saw coming to his courtroom making similar choices as the defendant.”

“The court of appeals cherry picked out ‘you guys’ and said it was close to saying ‘you people’ which has been used to convey racial stereotypes,” St. John said. “But all you have to do is go to the next sentence to see what the sentencing judge was talking about – every fourth man who comes into his courtroom making decisions like the defendant. It wasn’t in any way racial, it was experiential.”

But Justice Ann Walsh Bradley wondered what distinguishes remarks that are “racial” from those that are “experiential.” Bradley noted that a sentence had been vacated in State v. Fuerst, 181 Wis. 2d 903 (Ct. App. 1994), because the judge had improperly commented that the defendant did not attend church.

“You make the distinction that they are not racial, they are experiential,” Bradley said to St. John. “I don’t know what that means. In the Fuerst case, where a judge based a sentence in part upon his dislike that the defendant didn’t have a belief system and didn’t attend church regularly and the court there said you can’t base your sentence [on that]. Isn’t that not necessarily religious bigotry, but rather experiential? Perhaps my experience can be that people who attend church regularly are the type of people concerned about issues of community and well-being and their families?”

Not an unfair sentence

Taking his turn at the podium, Assistant State Public Defender Michael Gould admitted in response to a question from Justice Patience Roggensack that the sentence of two years’ confinement and three years’ extended supervision was not “horrendously out of whack.”

But Gould said this case should not turn on the severity of the sentence.

“The sentence could have been longer or shorter but those comments would still be there, raising a reasonable concern that race and gender played a factor in the sentence,” he said. Gould added that judges are not required to explain why they decided a sentence should be four years rather than five and so it is impossible to quantify what effect these comments had on Harris’s sentence.

Pressing the issue, Abrahamson asked, “Suppose the judge here really went off and we don’t have any dispute about the nature of his comments and then he gave your client probation.  Isn’t that harmless error?”

  “I still don’t think so because it still raises the question of whether race in some way … played a factor in that consideration.” Gould said, noting that the court should consider the impact the comments have on the appearance of justice.

A ‘reasonable defendant’ standard?

Gould asked the justices to imagine a racially mixed audience, suggesting that African-Americans may find racially tinged meaning in comments where Caucasians find none.

Accordingly, Gould recommended the court adopt a standard, borrowing from equal employment law, for evaluating remarks from the perspective of “a reasonable person in the plaintiff’s position, considering all the circumstances.”

Bradley remarked that she was not comfortable with the “imprecision” of the “any observer” standard because there can be wide disparities in life experiences among observers. Gould agreed and said that was more reason for adopting the perspective of the defendant.

Related: Debate over judge’s ‘baby mama’ remarks headed to Wisconsin Supreme Court (Aug. 21, 2009)

Related: Court’s “baby mama” remark leads to resentencing (Feb. 3, 2009)