Last week's 8th District decision in State v. Barnes demonstrated two things. First, sometimes it's better if you don't get what you asked for. Second, while trial judges can get upset by being reversed by the court of appeals -- and sometimes understandably so -- it's best for the judge not to voice his displeasure at the reversal while the court reporter is typing away.
Back in 2003, Terrance Barnes was indicted in two separate cases stemming from allegations that he'd violently assaulted and raped his girlfriend. In one case, he was charged with rape, felonious assault, kidnapping, and domestic violence; in the other with attempted rape, abduction, and gross sexual imposition. After a lot of haggling, the parties worked out a deal. In the first case, the rape charge would be reduced to gross sexual imposition, Barnes would plead to the felonious assault, and the other two charges would be dismissed. In the second, he'd plead to the first two charges, with the last being dismissed. The judge gave Barnes eight years on the felonious assault and the attempted rape, three on the abduction, and eighteen months on the GSI, but ran them all concurrent and sent Barnes on his way.
But there'd been a problem at the plea hearing: while the judge told Barnes that he'd be subject to post-release control, he didn't indicate that it was a mandatory, and that it was for five years. The court of appeals vacated Barnes plea "with reluctance." So Barnes went back, decided to try the cases, got convicted of the first one, and the judge sentenced him to fourteen years in prison.
The focus of Barnes' second appeal is on the trial judge, first on comments that the judge made during trial -- telling Barnes to keep quiet when he spoke out during the victim's testimony, interrupting defense counsel's cross-examination of the victim, and making comments after the jury verdict. All that's going nowhere; the latter, "although perhaps inappropriate," couldn't have affected the verdict, and the former, although "perhaps unnecessarily harsh," did not affect "the jury's assessment of the substantial evidence in this case."
The more substantial claim is vindictive sentencing: as the dissent points out,
when defendant pled to four felony counts, he was sentenced to eight years in prison; when he went to trial after reversal of his plea and threats by the court of more severe sentencing, he was found guilty of only two counts, but then sentenced to 14 years.
Even more problematically, the judge had provided substantial ammunition for the claim. He made no bones about his displeasure at the reversal by the court of appeals, and neglected to preface his remarkes voicing that displeasure with the three little words that often serve as a judge's best friend: "off the record." The opinion cites extensively to the judge's comments about the reversal being "ridiculous," and, after the verdict, inviting the jury to tell the three-judge panel about its "unfortunate reversal" which "made this victim relive this horrifying situation in her life," prompting the panel to to remind the judge about the Rules of Judicial Conduct regarding criticism of the judiciary.
An even bigger problem, though, is that the claim of vindictive sentencing is buttressed by the judge's admonition to Barnes before trial:
We’ll give you a new attorney. We’ll give you a fair trial, and if you walk out of here not guilty, God bless you; but if you’re guilty of any one of these charges, you’re going to have a serious problem and you’re going to go back to the institution, and in all likelihood you’re going to go back for a far longer period than you’re currently doing now.
In fact, the majority also agrees that "Barnes has demonstrated a reasonable likelihood that the harsher sentence was motivated by vindictiveness."
I did a post three years ago on vindictiveness as it applies to Foster resentencings, and the same analysis applies. What gets the judge off the hook is Alabama v. Smith, which rejected a claim of vindictive sentencing in an identical situation: the defendant had pled and received one sentence, but went to trial when the case was reversed, and gotten a stiffer sentence after he was convicted. As the Smith court pointed out, judges have much more information available to them after a trial than after a plea. That was true in Barnes' case, and the judge did an excellent job of explaining how the new information impacted him:
I’ve heard the testimony in this case along with this jury and the uncontroverted testimony is that you assaulted this woman, that you kidnapped her and that you assaulted her. And after trying this particular case I am quite struck by the barbaric nature of your behavior. It’s very unusual for a victim to be covered with human bite marks. The uncontroverted testimony is that you actually had pieces of [M.W.]’s flesh in your teeth after the assault.
“The uncontroverted testimony is that she bears a scar on her right shoulder as a result of the flesh that you tore off of her. Her uncontroverted testimony is that one of the reasons you were biting her about the neck, about the face, about the head multiple times is because you thought that she was too pretty.
So if you're a judge and you find yourself in the same position as the judge in Barnes, you know what to do and say. But you might want to reserve the disparagement of your brethren on the court of appeals for in-chamber discussions.
Oh, and if you're wondering whatever happened to Barnes' other case: he tried that one, too, and was acquitted. For all the good it did him.