"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. I'll try to post excerpts from the responses as they are filed. That can be months after filing of the the appellate brief.
State v Anthony John Valdez
Appeal: 23AP2055
Filing attorney: James Walrath
Judge: Milwaukee County Circuit Judges David Borowski, Mark Swanson
A Milwaukee County judge was objectively biased when he sentenced a man to eight years in prison for relying inaccurate data and railing about reckless driving and shootings during sentencing, according to an an appeal.
The defendant, Anthony Valdez, was 19 in 2020 when he was driving an Infinity about 110 miles per hour while fleeing another car carrying a man who had pointed a gun at him. Witnesses confirmed there was a gunman.
Valdez slammed into another vehicle at South 27th Street and West Cleveland Avenue in Milwaukee, according to the appellate brief filed by attorney James Walrath. Two people in the car struck by Valdez, who had no criminal record, were killed. Valdez admitted his role in the deaths.
The prosecution and defense agreed to a plea deal that reduced the charges from two counts of second-degree reckless homicide to two counts of homicide by negligent operation of a vehicle. Prosecutor Michael Schindhelm also agreed to recommend a maximum sentence of 10 years in prison, Walrath wrote.
The prosecution explained that it offered the amended charges because of certain mitigating factors: the defendant’s quick acceptance of responsibility and the corroborated fact that Valdez was “fleeing a man” who was chasing him in a car after confronting him at gunpoint at an intersection.
At some point before a pre-plea hearing, Borowski had an off-the-record discussion with counsel, at which he said he felt a 10-year prison term was inappropriate.
Then, at the pre-plea hearing, the judge described that discussion, Walrath wrote. Borowski said,
I had a conversation with the lawyers off the record , and when I was discussing this with the lawyers off the record, . . . candidly, I expressed grave concern to both sides about the recommendation of 10 years in custody for killing two people.
At the plea hearing, Schindhelm acknowledged the incident was very serious but said the prosecution
considered the facts of defendant’s case to be “unique” because “the defendant was fleeing from a man who may have had a gun in this case,” and independent witnesses corroborated that defendant, while driving, had in fact been confronted by another driver who not only pointed a gun at him but was chasing him.
At sentencing in January, 2022, Borowski further described the earlier off-the record conversation, Walrath said.
And I remember specifically the first time Mr. Schindhelm suggested this amendment. Candidly, I pitched a fit. . . . My initial reaction was I was so appalled that the state would consider this that I raked Mr. Schindhelm ... over the coals, then I raked them back in the other direction because we have an epidemic of bad driving and people being killed on the roads in utter carnage, and it's always the victim who is minding their own business that's killed. (Emphasis in original brief.)
Borowski also "railed" against homicides of all types committed over last two years, the brief said.
He also pointed to record-setting firearms offenses, deploring the number of “non-fatal shootings.”
He followed that assertion by pointing to the rise in automobile theft cases, noting that the “rate is three to four times what it was just a few years ago.” Then, after noting the estimated speed of defendant’s car, he recalled the other double-vehicular-homicide cases in which he had imposed sentences: You were going the state said 110. That would not surprise me at all. You must have maxed out your vehicle.
Borowski also cited other sentences, all longer than 10 years, that he handed out in double-vehicular homicide cases.
"The sentence I'm going to give you, even if it's the maximum is less than any sentence I've ever handed out for a double vehicular homicide," Borowski said.
He eventually sentenced Valdez to a total of eight years of incarceration followed by eight years of extended supervision.
Valdez filed a post-conviction motion alleging Borowski relied on inaccurate information in sentencing and seeking resentencing or sentencing modification, but Circuit Judge Mark Swanson, who heard the motion, denied it.
"Judge Borowski’s initial concerns were well-grounded given the widespread problems with dangerous driving in Milwaukee County and the aggravating facts set forth in the complaint,” Swanson said, according to the brief.
“The court is satisfied that Judge Borowski sentenced the defendant based on the unique set of facts and circumstances in this case, not based on any perception of sentencing norms in unrelated matters. . . .”
Judge Swanson concluded: “The fact that Judge Borowski imposed a lesser sentence than the state recommended belies a finding of bias,” and that ... “Judge Borowski put aside his concerns and accepted the plea agreement under the circumstance of this case demonstrates an absence of bias." (Emphasis in original appeallate brief.)
Borowski erred, Walworth said, because he relied on irrelevant data in his sentencing without informing the defense in advance that he was going to do so. Valdez was not convicted of shootings, stabbings or other crimes considered by Borowski.
The judge also "openly prejudged" the type of sentence he would impose, Walrath wrote.
"Judge Borowski’s unalterable and unyielding commitment, on the record, that he would be imposing a long prison term, even before Valdez had entered a plea, defeated any claim that he was an impartial sentencing judge – he unequivocally stated what his desired outcome would be and he openly followed through on his promise to Valdez that he would be sending him to prison (i.e., "You’re going to prison.”)
Borowski's pronouncements that 15-to-20 or 20-to-30 year prison terms were normal were inaccurate, but he used them to calculate Valdez's sentence, Walrath said. A review of other reported appellate cases showed "the range of sentences turned out to be much lower; the range even included sentences to probation."
Other data showed that other serious driving-related offenses drew penalties that were much lower than Borowski estimated.
The fact that Judge Borowski eventually chose to impose sentence that was lower than his stated “norm,” did not disprove that his starting point was distorted by his misperceptions of normal sentencing ranges. ...
Anthony Valdez was denied due process of law both because the judge predetermined, without referencing his sources or foundation for his conclusions, before sentencing that Valdez should receive a prison sentence based on a “norm” of sentence ranges that objective facts have shown were seriously wrong.
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