Posted On: February 19, 2009 by Ronald V. Miller, Jr.

Abusive Judges

The Wisconsin Court of Appeals found that a judge’s condescending ramblings about a black criminal defendant’s “baby mama” could lead to a reasonable perception that the sentence was based on his race. Specifically, the judge said:

THE COURT: What do you do all day?

THE DEFENDANT: I just stay at home with my daughter and that's it.

THE COURT: Where is her mother?

THE DEFENDANT: At work.

THE COURT: So the mother works and you sit at home, right?

THE DEFENDANT: Yeah.

THE COURT: And watch the child?

THE DEFENDANT: I got all types of things goin'. My personal family.

THE COURT: Where does the baby's mama work?

THE DEFENDANT: Metro Market.

THE COURT: Did she finish school?

THE DEFENDANT: Yes.

THE COURT: Is she going to college, too?

THE DEFENDANT: Yes.

THE 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?

THE DEFENDANT: No.

This should be enough, but the judge is really enjoying the sport of playing with the guy because he can:

THE COURT: You're sure?

THE DEFENDANT: I ain't find her at -- she not the club [type].

THE COURT: Oh, she's not the club type.

As if repeating the same abusive joke over and over again makes it even funnier, the judge later continued, “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 Wisconsin Court of Appeals found that while

The term ‘baby mama’ might well have non-racial meaning used in some situations in isolation, the totality of the comments are of concern. In combination with references to ‘these women’ and ‘you guys’—a short step from the phrase ‘you people’, which is commonly understood to be insulting to the group addressed—these terms could reasonably be understood by an African-American, or other observer, or a defendant in Harris’s position, to be expressions of racial bias, even though we assume they were not intended to be racially offensive.

There was also a dissenting opinion defending the judge and the sentence. The dissenting judge went to the time honored ace-in-the-hole that most lawyers turn to when arguing a tough case: Tina Fey.

“Baby mama” does not refer to any particular race. It is currently a trendy pop-culture term for a single mother, as evidenced by the recent Hollywood movie (released on DVD in 2008) titled “Baby Mama,” involving Saturday Night Live actress, Tina Fey, playing the role of a white single mother. 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.

At worst – at worst – the judge was trying to sound hip? This is the height of insanity.

I really dislike it when judges talk abusively or condescendingly to lawyers, particularly when that lawyer is me, let me tell you. I think you can really judge a person by the respect they afford people over whom they hold power. But at least judges who are abusing lawyers are picking on people who can take it. Judges who pick on the personal lives of criminal defendants – often the easiest of marks – are just displaying pathetic bullying behavior, probably righting the wrongs they suffered as a child at the hands of the big kid on the playground. Yes, you are the big kid now, okay? Stop.

I’ve written about 10,000 times on this blog, that judicial elections for judges is a mistake. But the powers that be are never going to get rid of a judge like this, someone who everyone knows is never going to be “patient, dignified and courteous to litigants” but generally does not stray far enough off the reservation to get anyone’s attention. The fact that the public in an election is likely to rise up against this judge if he faces reelection is the only positive thing I can say about electing judges.

The unnamed hero of this story is the man’s lawyer who was not afraid to challenge this abuse and was able to create an opportunity for a better sentence for his client. How many times do you think this judge gave that same speech completely unchallenged? I’m not sure about the end game – the defendant was accused of distributing cocaine – but you have to appreciate this lawyer’s unwillingness to roll over and let his client endure this abuse unchallenged.