On Point

State v. Landray M. Harris, 2010 WI 79, reversing unpublished decision; for Harris: Michael K. Gould, SPD, Milwaukee Appellate; Resp. Br.; Reply; Amicus

¶3 We agree with the State and reject the reasonable observer test created by the court of appeals. Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin’s strong public policy against interference with a circuit court’s discretion. Our review of sentencing decisions is therefore limited to determining whether the circuit court erroneously exercised its discretion. Discretion is erroneously exercised when a sentencing court actually relies on clearly irrelevant or improper factors, and the defendant bears the burden of proving such reliance by clear and convincing evidence. It is beyond dispute that race and gender are improper factors; they may not be relied upon——at all——in the imposition of a sentence.

¶4 After reviewing the sentencing transcript in context and as a whole, we conclude that Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race or gender. The circuit court considered the proper factors——it evaluated the gravity of the offense, Harris’s character, and the public’s need for protection. The circuit court thoroughly explained its reasons for the sentence it imposed, and all of the potentially offensive comments flagged by both Harris and the court of appeals bear a reasonable nexus to proper sentencing factors. Because Harris has not shown that the circuit court erroneously exercised its discretion, we reverse the decision of the court of appeals.

The court thus delivers its opinion in the infamous “baby mama” case, which turns out to be yet another front in unceasing recusal wars. But first, the dry methodology: how the court tests for reliance on inadmissible factors such as race or gender.

¶31 The question in this case is how a defendant must meet the heavy burden of showing that the sentence was based on improper factors. Or more to the point, how should a reviewing court determine when a circuit court has actually relied on race and gender in imposing its sentence, and therefore erroneously exercised its discretion?

Easy, says the court, you just recur to inaccurate-information caselaw, ¶¶32-33. Inaccurate datapoints, judicial bias — why, they’re virtual peas in a pod, the “well-settled law” established in the former having “straightforward” application to the latter. If you’re looking for analytical support for the proposition, look no farther than the court’s observation that each defect raises a due process problem — because you won’t find anything else. Ah, you might be tempted to say, that’s awfully concrete; you’ve got “fouls” in soccer and in basketball, let’s use the same test for calling both. And your reaction would be just about right.

This would leave the litigant with an impossible task, proving by a high burden that the judge was actually biased. Shorter version: good luck, goodbye, and don’t let the door hit you on your way out of the courtroom. And yet, and yet … there’s a bit more here than first meets the eye. After stressing the need for actual reliance, proven by clear and convincing evidence, the court’s conclusion takes a sharp, unexpected turn:

¶35 Harris must therefore provide evidence indicating that it is “highly probable or reasonably certain” that the circuit court actually relied on race or gender when imposing its sentence. Black’s Law Dictionary 577 (7th ed. 1999) (defining “clear and convincing evidence”).

Highly probable or reasonably certain. Significant embellishment of “actual relied on,” no? Indeed, there is little if any daylight between that embellishment and the concurrence’s, “A sentencing court has erroneously exercised its discretion when the defendant demonstrates that the court actually relied, or there is a great risk that the court actually relied, on an improper factor, racial or gender stereotypes, when imposing sentence,” ¶100. (Eagle-eyed Tom Foley immediately picked up on this apparent agreement between majority and concurrence.)

With no difference between the two sides, why, then, the obvious heat generated by the concurrence? (“Justice Bradley wants this case to be something it is not. It is all about ‘appearance of bias’ she tells us. See concurrence, ¶¶68-70. She is wrong,” ¶25 n. 7.) It is highly probable or reasonably certain that the majority chafes at the concurrence’s reliance on recusal caselaw as a source of analyzing judicial bias, ¶¶88-93. As the concurrence matter-of-factly puts it, “Since we accepted this case for review, this court has been faced with questions related to the appearance of bias in two other contexts, motions for recusal[18] and amendments to the code of judicial ethics.[19] Both of these questions have been difficult for the court,” ¶69. The concurrence has the better analogy (judicial bias vs. inaccurate information), but in the end it is of little consequence: both end up in about the same place. It is just that this is a rift that will not end any time soon, and even a matter-of-fact reference is tantamount to rubbing salt in this open sore.

Anticlimactic: sentencing judge’s reference to “baby mama” didn’t introduce race into sentencing calculus.

¶55 At best, this term 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 Harris 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.

¶56 Looking at the 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.

Concurrence, it should be noted, cites United States v. Schneider, 910 F.2d 1569, 1571 (7th Cir. 1990), for the idea that “use of slang in discharging the awesome duty of sentencing is regrettable,” ¶111. Slang “diminish(es) the proper decorum of the courtroom,” and its use “should be guarded against because it may be subject to unintended interpretations.”

7th circuit court of appeals decision (en banc)

Second Amendment – Categorical Ban on Possession

Categorical legislative bans on gun possession are permissible under the second amendment, including those for convictions of misdemeanor crimes of domestic violence per 18 U.S.C. § 922(g)(9), which the court now upholds.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago, No. 08–1521 (U.S. June 28, 2010), hold that “that the Second Amendment ‘protects the right to keep and bear arms for the purpose of self-defense’ and that a law ‘that banned the possession of handguns in the home’ violates that right. … What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.” Left open, but only to a point, according to the court: as suggested above, the court doesn’t construe Heller to require scrutiny of “limits that were on the books in 1791. … This means that some categorical disqualifications are permissible: Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court. Heller did not suggest that disqualifications would be effective only if the statute’s benefits are first established by admissible evidence.” The court nonetheless upholds the DV ban only after extensive analysis showing the “substantial relation” between the DV-based ban and “preventing armed mayhem, … an important governmental objective.” The court assumes, without actually deciding, that heightened (rather than rational-basis review) is required. Scholarly dissent from Wisconsin’s own Judge Sykes, highly recommended, but in the end hers is a lone voice.

(Much more detailed analysis from Josh Blackman, who sees this as “a very significant case that should have rippling implications, and may wind its way up to SCOTUS in the near future.”)

Now that we know that the categorical ban on gun ownership survives Heller, we want to know whether this automatic dispossession remains a collateral consequence of conviction under State v. Frank J. Kosina , 226 Wis.2d 482, 488-89, 595 N.W.2d 464 (Ct. App. 1999): “Because the prohibition to possessing firearms arises from a body of law that is collateral to the state court proceedings, any consequence arising under that law must also be collateral. Whether Kosina experiences the effect of the federal statute is not a decision in which the trial court participates.” Substitute “deportation” for “the prohibition to possessing firearms” and you’ll very quickly see that the ratio decidendi of Kosina doesn’t holds water after Padilla.

As if on cue: mere days later, the Wisconsin court of appeals released a decision pledging undying fealty to Kosina, without remotely taking stock of the change wrought by Padilla, State v. Kurt D. Neis, No. 2009AP1287-CR, District IV, 7/15/10.

7th circuit court of appeals decision

Habeas – Miranda Waiver

Viewed through the deferential lens of 2254 habeas review, a state court finding that the severely mentally impaired Collins knowingly and intelligently waived his Miranda rights an incriminatory statement was not unreasonable.

Collins had a Wechsler-scale IQ in the low- to mid-60s, exacerbated by a brain aneurysm that damaged his frontal lobes and left him with a language disorder. Two experts testified at his suppression hearing that he was unable to understand his Miranda rights, a third (“the preeminent physicians in his field”) was unable to reach an opinion on the matter, but a fourth expert testified that Collins was able to understand and waive his rights. The Seventh’s analysis is a familiar refrain, a bit of a set piece if you prefer: we might not have reached the same conclusion ourselves on more unfettered review, but given the deference we must assign, etc., etc.

Under this standard, a state court’s factual finding is never unreasonable “merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010). …
…
The state courts found that Collins understood enough of the police and prosecutor’s warnings to satisfy Miranda’s requirements. We cannot say that finding was unreasonable, although this is by no means an easy case. As the state courts acknowledged, Collins produced significant evidence of his limited mental capacity at the time he gave his statement. The state courts gave due consideration to that evidence. Our deferential evaluation of the record leads us to conclude that the state courts were not unreasonable in determining that Collins nevertheless understood to the requisite degree both the Miranda warnings and the consequences of waiving his rights.

Fair enough. But although the court’s conclusion might seem preordained, its analysis is far from mechanical. The court reminds that Miranda waiver has two quite separate components, voluntary (not raised by Collins) and knowing / intelligent waiver. The court’s recitation of the showing for each won’t be repeated here, except to note the court’s disavowal of the Sixth’s recent holding that a suspect’s utter incomprehension of rights is meaningless so long as the police are unaware of his disability, p. 27 n. 6, citing Garner v. Mitchell, 557 F.3d 257 (6th Cir. 2009) (en banc). The problem then becomes:

But even in the absence of intentional coercion, if Collins had insufficient mental capacity to understand what the officers and prosecutor were saying to him, he could not have waived his rights.What level of understanding, then, does Miranda require before a defendant can intelligently waive his rights and give an admissible statement?

The court answers its own question by discerning that the bar to admissibility is “relatively low.” The court marshals examples illustrating the point, including a few low bars that the government was still unable to hurdle:

… It is only when the evidence in the case shows that the defendant could not comprehend even the most basic concepts underlying the Miranda warnings that the courts have found an unintelligent waiver. One example is a defendant whose command of English is so poor that the police might as well have been speaking gibberish. See, e.g., United States v. Alarcon, 95 Fed. Appx. 954, 955-57 (10th Cir. 2004) (defendant understood only “bits and pieces” of English and often pretended to understand English out of embarrassment and a desire to cooperate); United States v. Garibay, 143 F.3d 534, 537-38 (9th Cir. 1998) (no evidence that defendant spoke enough English to understand warnings, and several witnesses testified that he spoke only a few words of English).

So, if you’re wondering, the line can at least be drawn at utter incomprehension. Now all you have to do is show it.

State v. Lyle A. Lay, No. 2010AP81-CR, District III, 7/13/10

court of appeals decision (1-judge; not for publication); for Lay: Timothy A, Provis; BiC; Resp.; Reply

An Alford plea may be one of “no contest” as well as “guilty”:

¶8      Lay is mistaken that an Alford plea cannot be entered within the context of pleading no contest. “An Alford plea is a guilty or no contest plea in which the defendant either maintains innocence or does not admit to the commission of the crime.” State v. Multaler, 2002 WI 35, ¶4 n.4, 252 Wis. 2d 54, 643 N.W.2d 437 (emphasis added); see also State v. Williams, 2000 WI App 123, ¶7, n.4, 237 Wis. 2d 591, 614 N.W.2d 11 (“Alford plea is a plea in which the defendant pleads either guilty or no contest”); State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997), aff’d 219 Wis. 2d 615, 579 N.W.2d 698 (1998), (“Alford plea is a plea in which a defendant pleads either guilty or no contest”); State v. Spears, 147 Wis. 2d 429, 433, 433 N.W.2d 595 (Ct. App. 1988) (an Alford plea “allows a guilty (or no contest) plea to be entered by a defendant even when accompanied by protestations of innocence” (internal punctuation omitted)). We therefore reject Lay’s argument that by construing his plea as “a[n] Alford plea of no contest,” the circuit court transformed his plea into a guilty plea.

Additionally: the trial court informed Lay of the consequences of an Alford plea when it told him he would be found guilty and a conviction would result “just as though you had pled guilty or pled no contest and admitted there was a factual basis for the plea,” ¶9. Eyewitness accounts recited in the complaint established a sufficient factual basis. To the extent Lay had a different version, his remedy was to challenge the complaint’s version at trial, ¶10. And, Lay’s argument that the court of appeals should bar entry of Alford pleas either by unrepresented defendants or altogether, is not within the court’s authority to entertain, ¶10 n. 3.

decision below (unpublished); for Marinez: Ralph Sczygelski

Issues (as provided by the court):

Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child’s videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by applying the de novo standard of review to the circuit court’s decision admitting the minor child’s videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by giving undue weight to the fact that no evidence of Marinez’s conviction for burning the minor child’s hands was introduced to the jury?

Petitions for review aren’t posted, but the court of appeals’ briefs and decision suggest the following. Marinez was charged with sexual assault of a child, his stepdaughter M.M.L. During her videotaped “forensic interview,” the authorities discussed an otherwise unrelated incident in which Marinez burned her hand — the other-act at issue. The State at trial argued admissibility “to establish identity, timing, and venue; to support M.M.L.’s credibility; and to fully establish its case,” ¶10. The trial judge allowed the evidence in for purposes of identity and context, but on appeal the State concedes identity was an improper purpose and argues only “context,” id. The court of appeals articulated the settled 3-part “Sullivan” analysis (which won’t be recited here), and holds that the evidence failed the 1st step, proper purpose. Unlike prior caselaw, where otherwise unrelated misconduct evidence provided a valid context to show why, for example, witnesses had recanted their accusations against the defendant: “Here, in contrast, the hand burning evidence did not explain M.M.L.’s behavior in reporting the incident,” ¶15. That’s basically it, the rest being mere detail as to why the one really had nothing to do with the other.

You may be thinking, hmm, a completely fact-specific case applying well-settled law to a discrete (there’s that word again) context, of no compelling value except to the immediate litigants, exactly the sort of case unsuitable to review. And you wouldn’t necessarily be wrong, State v. McConnohie, 113 Wis. 2d 362, 369, 334 N.W.2d 903 (1983):

This court has stated that it will not ordinarily review a court of appeals decision in a criminal case where only the question of the proper exercise of a trial court’s discretion was before the court of appeals. State v. Outlaw, 108 Wis. 2d 112, 120, 321 N.W.2d 145 (1982). Moreover, subsequent to reorganization of the Wisconsin court system in 1978, the question of whether justice has been done in an individual case is primarily and initially the concern of the court of appeals. A.B.A. Standards Relating to Appellate Courts sec. 3.00, commentary at 4 (1977). While the lack of justice or an erroneous result may trigger a review in this court, it is the general position of this court, pursuant to the standards adopted for reviewing cases (sec. 809.62, Stats.) that this court will not ordinarily review discretionary determinations by the court of appeals where that determination has not, arguably at least, been based on an error of law. …

But you would be short-sighted, focusing too narrowly on standards for review articulated in Rule 809.62. Remember: this is a State’s petition, and the grant of relief by the court of appeals supports review no matter the issue. Besides, when the court gets done with this case it is entirely possible that nothing will remain of Sullivan‘s 1st step, that “context” will always and necessarily allow admissibility of unrelated misconduct — now, that would have widespread precedential value, wouldn’t it?

Freddie L. Byers, Jr., v. Basinger, 7th Cir No. 09-1833, 7/9/10

7th Circuit decision

Habeas – Exhaustion

To exhaust a federal claim, a 2254 petitioner must have “fairly presented” it to the state court.

… We use four factors to evaluate whether a petitioner has “fairly presented” his claim: “1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.” See White v. Gaetz, 588 F.3d 1135, 1139 (7th Cir. 2009).

Byers failed to exhaust one ground of his ineffective-assistance claims. In state court, he argued that his postconviction counsel was ineffective for failing to adequately present this ground, but he did not challenge trial counsel’s representation on this ground.

Habeas – Effective Assistance

Byers can’t demonstrate prejudice due to “disturbances” occurring during his trial (which counsel failed to contemporaneously address, hence fall within an effective assistance argument).

… While it is well established that a defendant’s due process rights include a right to an unbiased and impartial jury, it is equally clear that not every outburst or disruption warrants a new trial. See United States v. Olano, 507 U.S. 725, 738 (1993) (holding that, because “[i]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote,” a new trial is only required where there is discernible prejudice); Irwin v. Down, 366 U.S. 717, 728 (1961).

We have no record evidence of what was said, and we cannot not find prejudice stemming from ambiguous or innocuous comments. In Whitehead v. Cowan, we found “innocuous” a victim’s mother’s outburst asking petitioner why he had killed her daughter—an outburst that occurred when the jury was seated but the judge had stepped out. See 263 F.3d 708, 724-25 (7th Cir. 2001); see also United States v. Al-Shahin, 474 F.3d 941, 949 (7th Cir. 2007). In our case, of course, the disturbances occurred when the trial judge was able to monitor and address them immediately—which he did by excusing the jury and admonishing the spectators to maintain proper etiquette. At the end of trial, the judge questioned the jury, and not one juror indicated that the disturbances or any other event affected his or her ability to render a fair verdict. See Whitehead, 263 F.3d at 726.

7th Circuit decision

Abstention – SVP Proceeding

The Younger v. Harris abstention doctrine applies to pending ch. 980 proceedings.

What is true is that a person who is in state custody awaiting a determination by the state courts of the legality of his custody may seek federal habeas corpus to challenge that custody without being barred by the Younger doctrine if immediate federal intervention is necessary to prevent the challenge from becoming moot. That would be the case if the petitioner were complaining that the state proceeding had violated his right to a speedy trial or had placed him in double jeopardy. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-92 (1973); Walck v. Edmondson, 472 F.3d 1227, 1232-34 (10th Cir. 2007); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998). For then the eventual decision by the state court would come too late to secure his rights. That is not true of the petitioner’s right not to be subjected to an ex post facto law.