I try to stay away from blogging on courthouse issues, my day-job being, as it is, criminal defense in Milwaukee County. I could tell stories all day, every day about courageous and outrageous behavior by the many judges before whom I have had the honor of appearing. I don’t need – and my clients certainly don’t want – to worry about whether I have offended some judge in print such that he or she is subliminally or overtly punishing or (worse) ignoring me as I try to get them to give my clients a fair shake.
But the Baby Mama decision has been kicked around like a football by the usual gang of right-wing radio and blog "personalities" in their continuing effort to pooh-pooh any namby-pamby exercise in racial sensitivity, that I thought I would throw another perspective (mine) into the mix.
I personally know everyone involved in the decision – Joe Wall and I both started work in the DA’s office on my first day as a lawyer in 1986; Judge Kessler was once a neighbor; and it is not unusual to encounter the whole doggone Court of Appeals in the elevator of my office building (they are on the 14th floor, I’m on the 10th). Both 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 analysis, 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. The bottom line for me is that, although I understand exactly what Judge Wall was trying to get at in his remarks, he did it in a way that tainted the sentencing process such that there has to be a re-do.
Some people can serve for decades on the bench and have no discernable concern about the growing underclass, the impact of poverty and the legacy of racism on the children and adults who make up a majority of those charged with crimes in Milwaukee. This is certainly not the case with Joe Wall. Exhibit One in the defense of his language in the Harris sentencing is his brilliant piece in the Journal Sentinel in 2003 explaining the nexus between poverty, race and the loss of hope and, too often, life for many city children. Joe was the kind of judge who was unaccepting of the damage he saw in the lives of those who appeared before him. As an outsider to the underclass experience – as 99% of the judges and lawyers in the Courthouse (myself certainly included) are – he made a major effort to understand what the hell is going on with those who have fallen out of the bottom of straight society.
He did an exemplary job doing just that in the J-S piece. He did not do so well on Harris’ sentencing date, making the mistake of guessing rather than knowing about Harris in particular and, in his off-the-cuff exposition of the women-supporting-men phenomenon in inner city economics, getting in over his head on what is, more than anything, a symptom of societal breakdown rather than the disease itself.
Women remain the bedrock of economic and residence stability (such as it is) in the inner city. This has been the case before, during and after the AFDC era. Women are generally in a better position to do so based on the nature of child-bearing and rearing and because they are more employable in the entry-level service industry that make up the majority of available employment in post-industrial inner-city Milwaukee. The home-is-where-I-hang-my-hat situation of many young unemployed men in the inner city, as they float between the women in their lives – ex-wives/girlfriends/baby mamas, current wives/girlfriends, their mothers, and others in the extended family – is nothing new or unique to the kind of drug user/small-time dealer that Wall was sentencing. Much has been written about the historic emasculation of the black male, during and after slavery and is a major part of the continuing legacy of that crime. Whether Landray Harris is part of that history or a victim of his own selfish mistakes, I can't say and, more importantly, neither can Judge Wall. He certainly didn't know enough about him to make his living and financial situation -- much less that of "every fourth person" -- even a minor issue during the hearing.
Although the use of the term "baby mama" and lumping Harris in with some unidentified "you guys" who supposedly find working women to support them are the phrases that cause the most problems for Wall in terms of casting a racial tinge to the proceedings, it is not the worst of his attempt at educational sarcasm on that day. The most offensive, I think, is his wondering out-loud whether all these men and women belong to a "club" to make these nefarious living arrangements. Although he meant it as a joke (and despite his excited reaction to the opinion), Joe Wall knows better than that and those comments really belittle what is a very serious systemic problem. His understandably-frustrated thinking-out-loud at the Harris sentencing does not do him or the problem he feels so passionately about any good.
This is especially so since coverage of the Court of Appeals action has been seized on by the opportunistic know-nothing local right-wingers, who would just as soon have judges call defendants "thugs" and worse during such hearings. The J-S even brought one of their many spoiled suburbanite columnists, Mike Nichols, into the fray, accusing Judges Kessler and Curley of "piffle" and calling on all judges everywhere to throw caution to the wind and tell us what they really think. It is this kind of ignorant bloviating you get from grandstanding right-wingers and other prissy writers who wouldn’t know the demands of justice if it came up and bit them in the ass.
In trying to make sense of the non-sensical, Wall ended up confusing things further; about the nature of the dysfunction we are all concerned about, the proper demeanor of a judge who is about to take away someone’s liberty for a number of years and about the discretion needed when saying something that will be presented to the reviewing court on a transcript that you know will include no footnotes, sidebars or expanded explanation for the later benefit of the Court of Appeals.
Without getting too much into the precedential particulars (for that, as usual, see my friend and bass player, IT), in the end, Judge Brennan gets some things right in her dissent by saying the defendant failed to establish that Wall’s comments had any impact on the result. But Judges Kessler and Curley are right to recognize the racial implications of the language used and to hold trial judges to a higher standard of avoiding even the slightest hint of those types of considerations in sentencing.
Joe Wall’s excellent reputation precedes him and, knowing him as a friend and a judge, I know he meant no racial disparagement whatsoever. Quite the opposite – I think he was trying to breach the divide and reach some tough-love understanding. However, there are some judges who I would not trust with such language. It is the language and not the judge that becomes the issue with naked words on the page of a transcript. His silly complaints of "political correctness" notwithstanding, it is the defendant that gets the benefit of the doubt – not Joe Wall.
Wall sentenced Harris to two years in-custody and three years ES, with a chance to cut the incarceration time with boot camp and/or early release. It’s a result that some defense attorneys would consider pretty good for a guy caught with over 15 grams of cocaine in the midst of a ridiculous, expensive and fruitless "war on drugs". It’s the kind of relatively moderate sentence we expected from Judge Wall. I know several judges who would studiously keep the record clean of any Baby Mama controversies and hammer the guy much worse. I worry much more about them than the once-and-future Judge Wall, but it best for everyone that they keep their more strident sanctimony in their hat.