Feb. 13, 2009 – A Caucasian judge’s comments on the African-American defendant’s lifestyle and his “baby mama” could lead to a reasonable perception that the sentence was imposed at least in part because of race, a three-judge panel of the Wisconsin Court of Appeals held.

In a published decision authored by Judge Joan F. Kessler, the court said that it did not believe the Milwaukee County circuit judge intended his remarks to be racially offensive in State v. Harris, 2008AP810. In fact, the court emphasized that the judge properly considered numerous appropriate sentencing factors before ordering Landray M. Harris to serve two years of imprisonment and three years of extended supervision for possession with intent to deliver 7.21 grams of cocaine.

Rather, the judge erred during the allocution when he asked Harris if he had a job and Harris admitted he was unemployed, staying 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.”

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.

Finding no Wisconsin case law on point to guide its decision, the court 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 found the Wisconsin case of State v. Fuerst, 181 Wis. 2d 903 (Ct. App. 1994), to offer some 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.

In this case, Presiding Judge S. Patricia Curley filed a concurring opinion in which she observed that the remarks directed at Harris fell below the standard of the Code of Judicial Conduct, SCR 60.04(1)(d) and (e). Those provisions direct a judge to be “patient, dignified and courteous to litigants” and to perform judicial duties without manifesting bias or prejudice “by words or conduct.”

Judge Kitty K. Brennan dissented, arguing that Harris had not met his burden of showing that the “sentence was based on clearly irrelevant or improper factors.” Brennan said that “baby mama” is merely a “trendy pop-culture term for single mother” without any particular racial connotation.

“At worst, the ‘baby mama’ comment here is an awkward attempt by the trial court to sound hip to a defendant when explaining how his idleness and lack of ambition are negative character traits especially in contrast to the mother of his child,” Brennan wrote.

Further, Brennan said the judge used the term “baby mama” a second time after mistakenly referring to the mother of Harris’s child as “your wife.” The judge had to correct himself and state, “not your wife, your baby mama.” Brennan said these circumstances yield no racial subtext.

Brennan similarly found no improper meaning behind the judge’s remark of “you guys.”

“The ‘guys’ were not of a particular race,” Brennan wrote. “They shared the commonality of all being charged with selling drugs and had the same negative character for not working, not going to school, sitting idle, while the women in their lives worked.”

Distinguishing this case from Jackson, Leung, and Fuerst, Brennan said that the comments in question were not made in reference to Harris. The terms “baby mama” and “you guys” were “about other people in the context of the court explaining its reasoning regarding its negative character assessment of Harris,” Brennan wrote.

“In context, [‘baby mama’] described the single mother who worked and went to school,” Brennan wrote. “It was descriptive of the contrast to Harris, who did neither.

“Similarly, the ‘you guys/club’ comment was not a reference to Harris; it was not a racial reference at all and it was not related to the basis for his sentence,” Brennan continued. “It described the one in four actual defendants (not stereotypes) that the trial court had before it, who live with the mothers of their children, while those women work and go to school and the men do nothing but sell drugs.”

Harris’s sentence has been vacated and the case is remanded for resentencing.