By Gretchen Schuldt
A Milwaukee County circuit judge who repeatedly cited erroneous information about the cause of an infant's death when she sentenced the girl's father for his role in that death erred when she denied him a new sentencing hearing after the error was discovered, a State Court of Appeals panel ruled this week.
The District 1 Court of Appeals panel ordered a new sentencing hearing for Vaylan Morris, whom Circuit Judge Janet Protasiewicz had sentenced to four years in prison and five years extended supervision after he pleaded guilty to second-degree recklessly endangering safety.
During the sentencing hearing, Assistant District Attorney Matthew James Torbenson told Protasiewicz that synthetic marijuana might be to blame for the girl's death, but Dr. Brian Linert of the Medical Examiner’s Office actually concluded that it was not the cause.
While there was synthetic marijuana in the girl's stomach contents, the drug had not circulated through her blood or nervous system and did not kill her, he said.
When the state admitted the error during a postconviction hearing, Protasiewicz found that Torbenson merely "misquoted" Linert's findings.
The error did not necessarily mean the prosecutor's statement was wrong, she said, because "different medical examiners can disagree about the cause of death."
No alternative medical examiner findings were actually offered.
Morris was charged after the girl's mother, Monica Gonzalez, told police she and Morris were co-sleeping with the baby before she died. Both Gonzalez and Morris admitted smoking synthetic marijuana.
Morris eventually pleaded guilty to second-degree recklessly endangering safety and Protasiewicz sentenced him to four years in prison and five years of extended supervision. Gonzalez, who pleaded no contest to the same charge, received the same sentence from Protasiewicz.
Linert's autopsy also showed no signs the baby suffocated, nor any indication that either adult had killed her by lying over her body. While he did not rule out the possibility the death was related to co-sleeping, Linert found that the cause of death could not be determined.
During the sentencing hearing, Torbenson said the death could have been related to co-sleeping or to synthetic marijuana.
"We know that this child had three different types of synthetic marijuana in her system, but we don’t know exactly how far the synthetic marijuana made it inside her system in order to say that that was the ultimate cause of her collapse and death,” he said.
Protasiewicz made several references to the cause of death. The baby, she said, “would be alive and well today if you and her mother had not engaged in the reckless criminal conduct the two of you chose to engage in.”
She also mentioned "all this synthetic marijuana" in the baby's system.
"So not only could you have suffocated her—you certainly had been negligent enough," Protasiewicz said. "And I hope it was negligence. I hope the two of you weren’t putting anything in her bottle to make her sleep soundly so she wouldn’t bother you. But that certainly comes to mind. "
The appeals panel found that Protasiewicz's contention that medical examiners could disagree about the cause of death is "inconsistent with, and unsupported by, the record," Appeals Judge
William W. Brash III wrote for the panel. He was joined in the opinion by Appeals Judges Joan F. Kessler and Timothy G. Dugan.
It also rejected Protasiewicz's contention that she had not relied in "any particular theory of the cause of death" when sentencing Morris.
"The trial court's remarks...clearly indicate its belief that Morris caused the death" of the baby, Brash wrote.
Protasiewicz, Brash wrote, "never considered any other possible cause of death, such as sudden infant death syndrome. Moreover, the court’s statements conflict with the autopsy findings, which stated that a cause of death could not be determined."
Finally, the panel rejected the state’s contention that Morris should have raised his argument about the inaccurate information during the sentencing hearing.
“Morris points out that his trial counsel had no way of knowing that the information was inaccurate at the time of sentencing, because the State had represented that the prosecutor obtained the information during a discussion with Dr. Linert, and Morris’s trial counsel was not present for that conversation,” Brash wrote.
Morris was represented on appeal by Nicole M. Masnica.
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