Aug. 21, 2009 – A debate over a sentencing judge’s racially suggestive comments is headed to the Wisconsin Supreme Court this fall.

The Wisconsin Court of Appeals vacated Landray Harris’ sentence for possession with intent to deliver cocaine, holding that the Caucasian judge’s comments on the African-American defendant’s lifestyle and his “baby mama” could create a reasonable perception that the sentence was imposed at least in part because of race.

In briefs filed with the supreme court, the Wisconsin Attorney General and Harris’ lawyer from the State Public Defender office debate standards by which racially tinged comments should be judged and whether a defendant must contemporaneously object or else waive the issue.

‘Baby mama’ remark  

Harris agreed to enter a plea deal in exchange for the prosecution’s recommendation of 24 months initial confinement and 24 months extended supervision. During the allocution, Harris answered the judge’s questions about his drug use, unemployment, and the time he spends at home with his infant daughter while the child’s mother balanced work with college classes.

“Where do you guys find these women, really, seriously,” the judge remarked. “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.”

Harris ended up with a sentence of two years initial confinement and three years extended supervision, exceeding the prosecutor’s recommendation.

The court of appeals cited the judge’s 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. However, the court said that it did not believe the judge intended his remarks to be racially offensive.

Finding no Wisconsin case law on point to guide its decision, the court of appeals looked to other states’ rulings on questions of bias at sentencing. The court cited Jackson v. State, 772 A.2d 273 (Md. 2001) in which the sentencing judge used words such as “ghetto,” “jungle,” and “people like Mr. Jackson who come ‘from the city’” to describe the African-American defendant. In United States v. Leung, 40 F.3d 577 (2d Cir. 1994), the noncitizen defendant was told that, “We have enough home-grown criminals in the United States without importing them.”

The court of appeals also found the Wisconsin case of State v. Fuerst, 181 Wis. 2d 903 (Ct. App. 1994), offered parallels. In Fuerst, the sentencing judge improperly noted that the defendant did not attend church without limiting consideration of that matter to his criminal conduct.

New law?

The attorney general charged the court of appeals with creating a new basis for resentencing, which is beyond the scope of its authority.

A comparison to Fuerst lends no support because the sentence in that case was not vacated “merely because of how a sentencing judge’s comments could be perceived,” the attorney general stated. Rather, the attorney general said, the sentence was vacated after “the defendant was sentenced to prison because he was not religious.”

The attorney general dismissed Jackson and Leung as “outliers” and “factually distinct” in that the disputed comments of those cases were much more overt, the attorney general argued. Further, the attorney general said that the Jackson court did not rule out the possibility that the sentencing judge was actually biased, whereas the court of appeals rejected that notion.

Under existing law, the attorney general argued, Harris is not entitled to relief because he is not claiming that the sentence was unreasonable or excessive.

But Harris countered that the court of appeals decision is consistent with the principle that a sentence based on irrelevant or improper considerations is subject to reversal, citing State v. Gallion, 2004 WI 42. “Considerations of race or gender would be at the top of any list of improper factors,” Harris argued.

Harris contended that “baby mama” is a common expression in African-American popular culture for the mother of a man’s child who is not his wife or exclusive partner. Harris argued that a white judge’s use of the term “baby mama” was racially offensive as a derogatory reference to the mother of Harris’ child, followed with sarcastic comments “Where do you guys find these women?” and “Is there a club?”

Moreover, Harris argued that the judge displayed sexism by improperly considering the child care arrangement as an aggravating factor in the sentencing.

“Day care costs can be prohibitively expensive for low-income families,” Harris explained. “No one would think it unusual for a woman to stay home and take care of a child while the father works and or goes to school. If a woman were being sentenced, staying home with a child would not be considered an aggravating factor, as it was in this case.”

In its reply brief, the attorney general remarked that a sentence is not based on race “just because one or a few of a sentencing judge’s comments could reasonably be construed as reflecting racial stereotypes.”

Chilling effect?

If the court of appeals decision stands, the attorney general warned of a “chilling effect” upon sentencing judges.

“[S]entencing judges may be reluctant to consider or discuss relevant and important sentencing factors,” the attorney general argued, noting that information about a defendant’s education or family life relate to sentencing factors such as character, dangerousness, and rehabilitation. Yet, the attorney general argued, these details can also “be construed as being related to race or racial stereotypes under the court of appeals’ analysis – particularly in hindsight.”

The attorney general warned that sentencing judges may resort to “more legalistic explanations and refrain from using the type of everyday language and colloquialisms that make the legal process more accessible and more understandable to non-lawyers.”

“[S]entencing judges may decide that it is safer to rely on appellate courts to fill in gaps in their analysis than to risk saying something that could later be used to support resentencing,” the attorney general argued.

Moreover, the attorney general said there was “no reason” why the court of appeals’ analysis “could not be extended to comments that could be perceived in hindsight as relating to gender, national origin, socioeconomic status or as just being sarcastic or rude.”

Harris responded the attorney general iscarrying the court of appeals decision to an absurd extreme, ignoring the fact that a judge’s comments are only considered from the perception of a “reasonable” observer.

Offensive to whom?

The attorney general argued that the court of appeals failed to articulate a clear standard to evaluate the judge’s words because it referenced four possible perspectives from which a person could have the impression that race played a role in sentencing: a “reasonable person in the position of the defendant,” a “reasonable observer,” an “African-American defendant,” and an “African-American.”

But Harris said there was no confusion because the court of appeals applied a reasonable observer standard like that used in Leung, “careful not to make unwarranted assumptions about the sentencing judge’s subjective intent.”

In its reply brief, the attorney general argued that a “reasonable observer standard” does not resolve the issue. The attorney general wondered, among other things, if the reasonable observer would have to be of the same race as the defendant or from the defendant’s community. Further, the attorney general asked if reasonable observers disagree, whose perception prevails?

Should the court decide that perception of a sentencing judge’s remarks is a basis for vacating a sentence, the attorney general asked the justices to set a standard by which defendants must  show  that “any reasonable person who heard the comments would question the sentencing judge’s ability to sentence the defendant without considering race.”  In this case, the attorney general said that Harris would fail to meet the standard.

  “The comments the court of appeals identified may have been ill-advised, sarcastic, or even offensive to some people,” the attorney general wrote. “But they were not such that any reasonable person who heard them would question the sentencing judge’s ability to sentence Harris without considering race.”

Contemporaneous objection

The attorney general further argued that if the justices permit a defendant to seek resentencing based on perceptions of the judge’s comments, a defendant should be required to contemporaneously object or else waive the issue.

An analogy is found in the rule that prevents a defendant from claiming a circuit court erred by relying on inaccurate information presented at sentencing if the defendant fails to contemporaneously object, the attorney general argued.

But Harris criticized the analogy, arguing that the cases dealing with inaccurate information at sentencing do not support the proposition that a failure to contemporaneously object at sentencing constitutes waiver.  State v. Spears, 227 Wis. 2d 495 (1999), and State v. Mosley, 201 Wis. 2d 36 (Ct. App. 1996), “do say that a circuit court does not err by relying on information that is not challenged during the sentencing, these cases do not say that a defendant is precluded by the absence of a contemporaneous objection from seeking relief from a sentencing decision based on demonstrably inaccurate information,” he said, citing State v. Tiepelman, 2006 WI 66.

The attorney general said that benefits of requiring contemporaneous objections include offering the judge an opportunity clarify or apologize for certain remarks. Also, the lack of such a rule “gives defendants an incentive to comb through transcripts after the fact in search of comments that could be perceived a certain way.”

However, Harris cited the courts in Leung and United States v. Kaba, 480 F. 3d 152 (2d Cir 2007), which rejected a contemporaneous objection requirement because “a defendant is understandably reluctant to suggest to a judge that an ambiguous remark reveals bias just as the judge is about to select a sentence.”

The attorney general rebutted that “[p]arties commonly challenge judges while cases are pending ... These can be awkward and even contentious. But parties are generally shielded by their attorneys, who much zealously advocate for them, and judges are presumed to be able to set aside disagreements and rule fairly and impartially.”

On the other hand, Harris suggested it could be hard to even know when to object, arguing “many judges comment at length on a large number of facts and factors, but ultimately may give significant weight to only one or two factors, so an objection may be premature.

“A contemporaneous objection rule will inevitably lead to a proliferation of postconviction motions alleging that defense counsel was ineffective for failing to object,” Harris warned.

Oral arguments before the Wisconsin Supreme Court are scheduled for Oct. 20.