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Joan Kessler, already in her mid-60s, was just re-elected to a six-year term on the Wisconsin Court of Appeals.
Her colleague, longtime Court of Appeals Judge Patricia Curley, is not slated to face voters until the spring of 2014 – at which time she will be 67.

If either one of them ever stands for re-election again, many Wisconsinites will likely have forgotten the truth about the so-called “Baby Mama Drama.” 

We – for so many reasons – should try hard to remember.
The drama began in August of 2007 at the sentencing of one Landray Harris, an unemployed, admitted drug dealer with a 1-year-old daughter. The little girl’s mother, it came out during a conversation between Milwaukee County Circuit Judge Joe Wall and Harris, was both working and going to college, in the meantime – a scenario the veteran judge had seen before.

He decided to put Harris on the spot.

“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?,” asked Wall, who had a well-deserved reputation for being one of the smartest and most qualified judges in Milwaukee County.

“No,” said Harris.

“You’re sure?” asked the judge

“I ain’t find her at – she not the club (type),” responded Mr. Harris.

“Oh,” said Wall, “she’s not the club type. I need the truth now. When was the last time you smoked marijuana?”

“Yesterday.”

That’s just part of a 30-page transcript of the hearing in which Wall also twice used the term “baby mama.” He, for  instance, noted that a lot of drugs on our streets come from Afghanistan, where “people Mr. Harris’s age (are) enlisting in the Marines and Army and National Guard, putting their lives at stake while Mr. Harris sits at home (and) gets high while his baby mama works and goes to school.”

Harris’s attorneys were apparently appalled.

They claimed the term “baby mama” and some other innocuous comments by the judge were inappropriate, and reflected racial and gender stereotypes. Wall only gave the guy two years, and also made him eligible for boot camp and earned-release after serving 12 months,  but the attorneys asked Kessler and Curley to overturn the sentence – which they gladly did.

They basically opined that Joe Wall didn’t intend to be a racist but sure appeared to be, and they sent the case back to the lower courts for re-sentencing – which, in turn, prompted the state to appeal their decision to the Supreme Court.

Anyone with any sort of cultural literacy (and without an agenda) has known the obvious from the beginning: “Baby mama” is not a term that has anything to do with race. All seven Supreme Court justices, in concurring opinions, came this week to the same basic, inevitable conclusion.

“At best,” wrote Justice Michael Gableman in the sort of cogent, straightforward opinion he is starting to become known for, “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.”

Wall “clearly found that Harris was acting irresponsibly, and appears to have used this phrase to chide Harris for his poor choices,” noted Gableman, adding that the comments related to relevant sentencing factors such as Harris’s character, education, and lack of  employment. The comments, the justice added, did not “implicate race.”

Gableman was joined by Justices Patience Roggensack, Annette Kingsland Ziegler and David Prosser, the court’s more conservative members. But after commenting in a concurring opinion about legal issues surrounding the appearance of bias versus actual bias, the more liberal bloc of the court also agreed that there is no way Wall could be determined to be a racist – and overturned Kessler and Curley.

They basically, all seven of them, totally and completely vindicated the man.

Wall left the bench and is now a federal prosecutor in Milwaukee. He does not mince words about the impact the Kessler/Curley decision – which travelled at lightning speed around the Internet – had on his reputation.

“Curley and Kessler’s now-disgraced baby mama decision was downright defamatory,” he told me. “Never in the thousands of cases in which I presided did I ever consider a person’s race. No attorney who ever appeared in front of me would contradict that statement. Their opinion was agenda-driven and the result was personally and professionally devastating to me. I don’t know how they ever thought they were going to get away with something like that. Unfortunately, because of the Internet, what they did will never go away.”

Joe Wall remains acutely offended for a couple reasons, I think. One is personal. Anyone who knows anything about Joe Wall and the life he lives knows he is just the opposite of a racist. The other is professional, a concern that has to be shared by any decent lawyer. Curley and Kessler dreamed up an opinion out of thin air that had nothing to do with existing Wisconsin law – let alone common sense.

It is beyond dispute that race and gender can’t be considered at sentencing, Gableman noted. However, Kessler and Curley created a new so-called “reasonable observer” test for whether race was improperly considered during sentencing, according to Gableman.

“This test is not the law in Wisconsin, nor should it be,” he wrote, adding that it lacks “basic clarity and workability” and “guts established law by lowering the defendant’s burden of proof.”  There is, instead, a “clear and convincing evidence” standard that must to used to determine whether a judge improperly considered a person’s race.

You can’t, in other words, just decide you want to rule one way or another in a case and then make up some new law to support your own personal agenda, even if you are a powerful judge on the Wisconsin Court of Appeals untouchable by voters for at least four years.

Given their ages, it’s unclear if Kessler and Curley will run again even then. But if they do, hopefully voters will remember what they tried to do to both Joe Wall and the law.

I don’t know if Wall would ever consider running for the Court of Appeals himself but, come to think of it, maybe he could also give anyone who doubted him a chance to put their faith where it should have been all along.

-July 19, 2010