Baby mama unites "dysfunctional" court

At best, this term ["baby mama"] reflects popular slang, referring to a mother who is not married to and may or may not have a continuing relationship with the father of the child or children. Even [the defendant, who is African American] acknowledges this phrase is sometimes used with reference to non-African Americans. It also appears that both parties agree the phrase, at a minimum, can be offensive depending on the context of its use.

Looking at the [sentencing] hearing transcript as a whole, we do not believe that the circuit court's use of the phrase "baby mama" makes it highly probable or reasonably certain that the circuit court actually relied on race when imposing its sentence.

— Majority opinion at ¶¶55-6

[The defendant] also contends that the term "baby mama" was "racially offensive." The parties dispute whether the term "baby mama" has a racial connotation, but both agree that the term has recently emerged in popular culture. As the Seventh Circuit has explained, "[t]he use of slang in discharging the awesome duty of sentencing is regrettable." In addition to diminishing the proper decorum of the courtroom, the use of slang should be guarded against because it may be subject to unintended interpretations.

I conclude that there has been no showing of actual bias or the great risk of actual bias. Generally, "baby mama" is a slang term referring to the unmarried mother of a man's child, and the court was considering [the defendant's] relationship with a woman who fit that definition. Thus, based on the above, I conclude that [the defendant] has failed to meet his burden to demonstrate that the sentencing court actually considered or appeared to consider an improper factor, racial stereotypes, when imposing the sentence.

— Concurring opinion at ¶¶111-12

State v. Landray M. Harris, 2010 WI 79.

Please visit the baby mama archives.

Baby mama's in the club

Today's decision of the WI District I Court of Appeals in State v. Harris (.pdf; 22 pgs.) is guaranteed to provoke a lot of discussion.*

Two judges found overtones of racial discrimination — along with sarcastic and demeaning ones — at the defendant's sentencing hearing, while the third (dissenting) discovered enough substance elsewhere in the proceedings to determine that the "baby mama" references were the product of "frustration," relatively harmless, and not enough to constitute abuse of discretion by the sentencing court.

The dissent also marshals Tina Fey in defense of the sentencing judge. Harris's sentence on cocaine-related offenses is vacated, but the appeals court ordered that he be sentenced one more time.

Better safe than sorry, I reckon.

eta:
* As predicted, but from a less likely source: the sentencing judge.
And, as of early afternoon, top of the page at JSOnline.com. Heck, I shoulda been a newspaper editor.

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.

And the baby elephant in the room

Prof. Esenberg enters the baby mama fray. The elephant being, of course, the question of whether the court of appeals was correct in announcing and applying the subjective (that is, one which requires the court to put itself in the defendant's shoes) standard that it did.

Prof. Esenberg, as a self-styled proponent of "judicial restraint," would, I suspect, solve the dilemma described below by affirmatively (activist-ly?) abandoning that particular test.

To the extent that that test was announced as an arguably new rule fashioned from extra-jurisdictional principles, it would take a further ruling of the Wisconsin Supreme Court to overcome its continued application (and maybe its publication is an invitation to do so).

In which case, I might be inclined to argue that the Supreme Court would need to address — and perhaps even subsequently discard — some very fundamental due process guarantees.

I wish the court of appeals had gone into more substantive detail on those questions, just as I wish that the dissent could have been more forceful in condemning what it may have perceived as the fabrication and/or assembly of "new law" rather than simply ignoring it.

I should mention quickly that I had set out only to clarify the court of appeals decision, not so much to defend it, but the more I think about it the more defensible it becomes (especially now that I've got the entire Milwaukee Journal-Sentinel editorial board on my side).*

In any event, it's a fascinating, worthwhile discussion and one that raises a wide range of both legal and local public policy concerns (which is not to suggest that those are always separable, by the way).

* McIlheran too? That's downright frightening.

eta: Also posted at Prof. Esenberg's own blog, complete with discussion well underway (and featuring several of the most thoughtful blog commenters in the business).**

** Scratch that, as I just left a comment, thereby lowering the collective IQ by a good 20 points.

Nichols doesn't get it either

The Journal-Sentinel's Mike Nichols on the baby mama kerfuffle:

Judge Wall didn't intend to be offensive, [appeals court judges] Kessler and Curley opined. But, they claim, "a reasonable person" would conclude he "was improperly considering the defendant's race." They focused on a couple sentences out of thousands and suggested Wall didn't mean to be a racist — but is.

That's a pretty outrageous and irresponsible accusation against Judge Kessler and Judge Curley. They most certainly and unequivocally did not suggest that Judge Wall is a racist.

Nor did they claim merely that a reasonable observer might find an improper consideration as a basis for the defendant's sentence.

They found that a reasonable person in the position of the defendant could have. That is a fundamental distinction. I would submit that had they not taken the defendant's own perceptions into consideration, they very likely would have affirmed his sentence.

Nichols, like many others, needs to go back and reread the court of appeals decision more carefully before making such pronouncements.

Interestingly, Nichols himself goes on to imply that another well known judge does harbor racist inclinations:

Our attorney general should appeal this decision to the Supreme Court. Unfortunately, there are some bench warmers there, too — including former Burnett County Circuit Judge Michael Gableman, who not long ago ran a Willie Horton-style ad that really was offensive. Exoneration from the likes of people like Gableman probably won't mean much to Joe Wall.

As offensive and insulting and pandering as Gableman's teevee ad was — and it was, very much so — I strongly disagree that it serves as an indicator of racism on the part of Gableman personally.

Although it was almost undeniably designed to appeal to and exploit racism for votes, what it was was the sleaziest of gutter politicking and for that, no racial component is necessarily required.

Can you imagine the outrage?!?

Um ... no. Fox "News" again.



What, now they want a marriage certificate too?* However, according to Rebecca Rapp St. John, an assistant attorney general with the Wisconsin Department of Justice, "baby mama" can mean your wife, the mother of your children. Which is probably news to most people.

* Page nine: NSFW.

Gableman's various travails continue

The Journal-Sentinel's Patrick Marley reports.

And reports some more.

On Tuesday at Dodgeville, the court is set to hear oral arguments in State v. Landray M. Harris, the celebrated Milwaukee County "Baby Mama" sentencing appeal, in which Michael Gableman, who is currently operating under his own personal appearance of bias cloud, will get to adjudicate in an appearance of bias case. Intriguing.

That oughta reinforce Mr. Harris's confidence in the system.

MKE's Chief Flynn: The fallout continues

When last we checked in with WTMJ radio's a cappella vocalist Jeff Wagner, he was experiencing some difficulty engaging with the infamous "baby mama" court of appeals opinion of January '09.

Now he's claiming that Milwaukee Chief of Police Edward Flynn has "ordered his officers to ignore the law."

This is pure fantasy, of course.

Wisconsin Attorney General J.B. Van Hollen's celebrated gun memo is no more "the law" than is this here blog post. Strictly speaking, Van Hollen's memo isn't even a "legal opinion," as Jeff Wagner calls it.

It's an "informal Advisory Memorandum," and it includes an express statement distinguishing it from the AG's opinions mentioned in Wis. Stat. § 165.015(1). It's meant only to be "educational and informational" (and the former purpose has turned out to include for a number of delightfully unintentional effects).

Which is especially noteworthy because Jeff Wagner himself links to a WTMJ news item that depicts Flynn as telling Milwaukee police officers to "ignore the memo." So how Wagner gets from there to "ignore the law" remains an ineffable mystery of construction.

Recall that the memo's function was simply to expound on whether openly carrying a firearm might per se warrant a charge of disorderly conduct, which is ultimately a question for the district attorney.

How police officers in the field deal with Wisconsinites wandering about armed on city streets is a different story. Indeed, the memo wasn't even addressed to police officers, so in that sense alone, Chief Flynn's advice to the rank and file is perfectly appropriate.

It's like saying, 'Don't read John Chisholm's inter-office mail.'

Anyway, Jeff Wagner's recent pontifications are in service of congratulating the Deputy Chief of Police in Waukesha, Wayne Dussault. Dussault, enthuses Wagner, is a law enforcement officer who "actually believes in following the law." As opposed to Edward Flynn, apparently, who actually doesn't believe in following the law.

What Dussault told the Milwaukee Journal-Sentinel, however, is that carriers of "exposed and holstered handguns" will only be "observ[ed to] see if they're committing any actions that draw suspicion."

Observed for how long, for which actions, and by how many officers, he doesn't say. (And prospective open keepers and bearers may want to further bear that potential commitment of LE resources in mind.)

Except among the several hypothetical scenarios proffered by Van Hollen, Dussault's relatively innocuous situation won't be found. Instead Van Hollen contemplates, for example, a shotgun-bearing hunter "quietly tracking game" along a "crowded street" who may or may not be overheard "barking" at passersby.

And that manner of activity, affirmed Dussault, "would be approached differently." Who knows, the said urban hunter may even have to be "taken down," as Chief Flynn suggested.

Like AG Van Hollen himself memorandum'd, by way of citing a series of U.S. and Wisconsin Supreme Court decisions governing police action obtaining from legally permissible inferences of reasonable suspicion, it "depends on the totality of the circumstances":

Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution.

And the cases teach that among such circumstances are those where a suspect may warrant being "taken down." That is, after all, the memo's bottom line: It depends. But everybody already knew that.

One should be grateful to Chief Flynn if not for his demonstrated commitment to maintaining public safety on the streets of Milwaukee, then at least for his ability to prod the local conservative blogogentsia to even more fantastical flights of silliness.

P.S. And that would be Townes Van Zandt's Pancho and Lefty. A poncho is a Peruvian Snuggie™ where Willie Nelson stashes his bud.

Baby-mama-drama drama babies

Speaking of Milwaukee's obscure non-MSM pirate radio station 620 WTMJ, one of its other in-house vocalizers, Jeff Wagner, is quite upset with yesterday's court of appeals ruling in State v. Harris.

Inveighs Wagner:

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:

Footnotes key to court's "dysfunction"

Another take on the "baby mama" sentencing case:

The interesting, but hardly surprising, aspect of this case is that Justices Gableman and Ziegler with their history of allegations of bias and who have used the ambiguity in this area of the law to their advantage, wanted to avoid adding clarity to the area and discuss how to resolve situations involving potential judicial bias. In fact, Justice Gableman could offer no more a rebuttal of the concurrence other than saying in a footnote bluntly and rudely (conduct uncharacteristic of the civility that once was the standard in all judicial decisions), "She is wrong."

→ XbeyondX

I submit this may have been an instance of a defendant breathing a sigh of relief at losing his appeal. He received a fair to middling sentence for selling cocaine and I believe was released from the confinement portion of the sentence some time ago. Had his appeal succeeded, his remedy would have been resentencing, where he would have stood a reasonable chance of getting sent back to jail.

While the appearance of bias claim wasn't without merit — the defendant won his first appeal; that decision was reversed by the Supreme Court — filing the appeal was a mighty close call.

One thing that's always bothered me about this case is that it isn't even clear whether the defendant understood those portions of the judge's sentencing colloquy which later became contentious.

When the judge said (I'm paraphrasing), 'Where do you find these women, is there a club?' the defendant replied, 'She doesn't go to clubs.' But the judge wasn't talking about nightclubs. So what was argued to be among the most disparaging of the sentencing judge's remarks seems to have gone right over the defendant's head.

Murphy can't help thinking

Milwaukee Magazine's Bruce Murphy of "Murphy's Law" today notes that he "can’t help thinking the [baby mama] issue has been misunderstood in several important respects, including ..."

And I can't help laughing out loud that he's seemingly claiming those "several important respects" as his very own. There were simply too many blogs, observes Murphy; he can't possibly mention them all.

But he apparently finds no such difficulty in mentioning the ones who made a complete and utter hash of those "important respects."

To be continued ...

Plaisted rights

An insightful and valuable and damn nigh definitive contribution from the learned counsel. Money quote (and there are several others):

Wall and the three appeals court judges involved are prime examples of the kind of fine legal and (more importantly) judicial talent that you will find more often than not on the bench in Milwaukee County. Although they reach different conclusions under different analyses, all four are toiling in good faith as they struggle to strike the difficult balance between understanding and accommodating without excusing the often-taboo impact of race and the treatment of the underclass in criminal courts.

A resounding chorus of Amens to that.

The Baby Mama Club

Procedural justice

Still more baby mama perspectives, this time from Marquette University professor of law Michael O'Hear (one of whose scholarly specialities is sentencing law and policy). Very interesting stuff.

Of course, had the court of appeals imported into its decision the social sciences literature that Prof. O'Hear mentions, some observers would have thrown a hairy fit on those grounds alone.

Personally, I don't have a problem with the courts doing that — so long as it's empirically sound — and neither did the framers of the federal sentencing guidelines, as Prof. O'Hear demonstrates.

The body of law should, and does, evolve. I'm amused by those who deride the strawman of "living Constitution proponents." The text of the Constitution may not change, but when it finds application in a changing and (hopefully) maturing society, those results may vary.

Not because the Constitution has changed, but because we have.

Speaking as an outraged liberal

I know I've been saying this, like, forever:

Stop picking on Obama's baby mama!

And for Faux News apologizing, they get a terrorist fist jab.

For the first time in my life, I'm proud of Faux News.

Otherside of the Game

I saw Erykah Badu at a small club in Toronto in about 1997. Her band was bass, drums, and Fender Rhodes, that's it. Fabulous show.

Anyway, I do believe this is a baby mama number:

Erykah Badu — Otherside of the Game

The deeper catalog Bob

"Anyone who wants to ignore particular periods of Bob Dylan's work is entitled to what I would consider their rather ignorant opinion." — Elvis Costello, who is well qualified to so opine

"Play it fucking loud." — Bob Dylan, Manchester, 1966

From somebody who's spent possibly way too much time studying the evidence, a recommended playlist comprised of one lesser appreciated song from each of Bob Dylan's studio albums,* chosen not necessarily for the lyrics but for the musicianship. Because Bob Dylan, who turns 70 today, is as good as or a better singer than Frank Sinatra. Seriously.

From a purely musical perspective, his intonation and his phrasing are virtuosic. He's also seriously copyright-litigious, which is why the links are to the Wikipedia entries for the albums and not to YouTube uploads, because there aren't any and if there are, they'll be gone tomorrow.

Not that Dylan has been uniformly consistent because, speaking as a hardcore aficionado who considers Dylan one of the most important American musicians (and indeed, persons) of the last 250 years, not only has Dylan produced some of the greatest records ever but the worst ever: Dylan & The Dead. Do not even go near it. On the other hand Dylan has so far refused to release one of his best shows, from Massey Hall in April of 1980, which was professionally recorded and filmed.

The bootlegs are easily available. And yes, the show is from Dylan's so-called Born Again period, which legend has it began around the time Dylan was baptized in Pat Boone's Hollywood Hills swimming pool. You might not expect praise from this space for New Testament-infused songwriting and performing (Dylan actually delivered sermons during those Gospel tours that would make a fundamentalist preacher blush) but as Leonard Cohen** put it, although Cohen didn't concur with the sentiments expressed, those songs are among the finest of the genre.

[One record that you can listen to in its entirety online is Gotta Serve Somebody: The Gospel Songs of Bob Dylan,*** a collection of covers performed by Gospel artists. Bob himself turns up on the last track to chat with Mavis Staples about the press and knockin' a few of them chickens in the yard off and fryin' 'em up before kicking some righteous ass on a revamped version of Gonna Change My Way Of Thinking.]

One thing that's truly remarkable about Bob Dylan is that he's succeeded in being among both the best and the worst musicians ever, sometimes even not only within the same song but within the same verse. He's also managed to write one of the worst lines in all of popular music: "They stamped him and they labeled him like they do with pants and shirts" — Lenny Bruce. And I'm here to tell you that probably the worst concert I ever attended was a Dylan concert, early '90s, O'Keefe Centre. Dreadful.

Something you can say for the Dylanologists: We are brutally honest.

Anyway, the deeper catalog, so go and make your iTunes playlist:

Gospel Plow
House Carpenter
Moonshiner
Spanish Harlem Incident
I'll Keep It With Mine
Queen Jane Approximately
Obviously 5 Believers
I Am A Lonesome Hobo
Tell Me That It Isn't True
Gotta Travel On
Sign On The Window
Billy 4
Big Yellow Taxi
Tough Mama
Meet Me In The Morning
Tiny Montgomery
Abandoned Love
We Better Talk This Over
Do Right To Me Baby (Do Unto Others)
Solid Rock
The Groom's Still Waiting At The Altar
Foot Of Pride
I'll Remember You
You Wanna Ramble
Shenandoah
What Good Am I?
[None: This record is horrible]
Diamond Joe
Lone Pilgrim
Dirt Road Blues
Honest With Me
Someday Baby
Shake Shake Mama

Bonus single: George Jackson (which you won't find on iTunes).

As for the Christmas album, I gotta say, it's pretty hard to take, except for Must Be Santa, which is a classic, and has some fantastic drumming on it. Speaking of drummers, Dylan has been known to hire the best, including one of my all-time favorites, Jim Keltner. If you've never heard of him, I guarantee you've heard him play a thousand times on anything from Knockin' On Heaven's Door to (the less litigious) Steely Dan's Josie.

In other words a tremendously busy studio cat who said that of all the musicians he's ever played with, the only one he'd drop whatever he was doing to answer the call for is Bob Dylan, which is pretty high praise.

And since this is mostly a political blog, I'll leave you with a couple of stanzas that are hard for the liberals to deal with, from 1983's Infidels which Peter Goddard, the music critic for the Toronto Star, called "Dylan's reactionary thesis." Be that as it may, it's one of his best.

This one:

Now his holiest books have been trampled upon
No contract he signed was worth what was it [sic] written on
He took the crumbs of the world and he turned it into wealth
Took sickness and disease and he turned it into health
He’s the Neighborhood Bully

And this one:

Well, it’s Sundown on the Union
And what’s made in the U.S.A.
Sure was a good idea
’Til greed got in the way

Happy Birthday Bob, may you play it fucking loud.

* Including a couple of outtakes. Sometimes he leaves the best songs from a recording session off the record.
** Also well qualified to engage the topic.
*** The title number actually frightened Allen Ginsberg, who considered it as embracing a fascistic "the Devil or the Lord" dichotomy.