JUDGE'S REMARKS EARN DRUG DEALER NEW SENTENCING HEARING

A Milwaukee man convicted of possessing cocaine will get a new
sentencing hearing because the judge who sentenced him asked the man
about his "baby mama" and where "you guys" find women to support them
while they stay home, the state Court of Appeals has ruled.

In an opinion released Wednesday, the court found that then-Circuit
Judge Joseph Wall did not intend his comments to be offensive and did
not intentionally engage in racial stereotyping.

"What concerns us is the reasonable perception of an African-American
defendant, or an observer, that the sentence was imposed at least in
part because of race," Judge Joan Kessler wrote for the majority.

Judge Patricia Curley was harsher and said the remarks were contrary
to the Code of Judicial Conduct.

"The trial court's intemperate sentencing remarks," Curley wrote in a
separate concurring opinion, "were sarcastic and demeaning, the
antithesis of 'patient, dignified and courteous.' As is evident by
the many sentencing transcripts that cross my desk, it is possible
for a sentencing judge to mete out stiff (and often well-deserved)
sentences without belittling the offender."

Wall, who left the bench in 2007 to rejoin the U.S. attorney's office
in Milwaukee and prosecuted former Ald. Michael McGee, called the
majority's opinions "convenient and opportunistic."

"The comments, reasoning and conclusion of these two judges are
legally incorrect and shameful, and are a transparent stretch to
appear politically correct at a politically correct moment," he said
in an e-mail.

"Not only was there no mention or recognition of the defendant's race
during his sentencing by me or anyone else in the courtroom, but my
comments were taken out of context, as the dissenting opinion well
points out."

In dissent, Judge Kitty Brennan, who was the chief judge in Milwaukee
until joining the appellate court last year, said she did not believe
a new hearing is required because there was no racial subtext in
Wall's remarks.

Wall said that in 25 years as a judge and prosecutor he never
considered a defendant's race.

He said he has written and spoken publicly regarding poverty's
effects on at-risk children and serves on the boards of three
nonprofit groups that largely serve African-Americans.

Landray M. Harris, 22, was convicted of possession of cocaine with
intent to deliver and being a party to the crime after entering a
guilty plea. He had no previous record.

At sentencing in August 2007, Harris told Wall he was not working but
cared for his then-2-year-old daughter. Wall asked Harris about the
child's mother - whom he referred to as the "baby mama" - and noted
that she both worked and attended college.

"Where do you guys find these women, really, seriously," Wall said,
according to a transcript in the decision. "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?"

Wall sentenced Harris to two years in prison to be followed by three
years of supervision.

Milwaukee County Circuit Judge Kevin Martens, who took over Wall's
calendar after Wall left the bench, denied Harris' motion to
reconsider the sentence, saying Wall's expression of incredulity at
Harris not working while his girlfriend did was "an appropriate
consideration of the defendant's character."

Michael K. Gould, a lawyer who handled Harris' appeal, said he did
not believe that Wall was racist but that he lost his temper.

"When I read the transcript, I winced," Gould said. "That is not
something a judge should be saying. It made the sentencing as a whole
seem to be unfair."

Christopher R. Smith, Harris' trial lawyer, said, "I thought the
comments were odd at the time, but my recollection is that the court
had wrong factual information and I thought that would be the reason
for the decision."

He said Wall mentioned that Harris possessed far more cocaine than he
actually did. Smith also said he thought the sentence was harsh for
someone without any prior record.