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Herrmann v. Meisner

United States District Court, E.D. Wisconsin

August 9, 2019

JESSE L. HERRMANN, Petitioner,
v.
MICHAEL MEISNER, [1] Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         1. Background

         Jesse L. Herrmann killed one young woman and severely injured four others when he slammed his pickup truck into the back of their car as they waited to make a left turn. State v. Herrmann, 2015 WI 84, ¶5, 364 Wis.2d 336, 867 N.W.2d 772. The collision was so severe that the grill of Herrmann's truck ended up in the back seat of the car where three of the young women were sitting. Id., ¶ 6. Herrmann ran from the scene but was detained by bystanders until police arrived. Id.

         Officers determined that Herrmann was drunk-very drunk-with a blood alcohol concentration of 0.215 after the crash. Id. The state charged Herrmann with various crimes, and he pled guilty to homicide by intoxicated use of a vehicle, four felony counts of causing injury by intoxicated use of a motor vehicle (two violations of each Wis.Stat. §§ 346.63(2)(a)1 and 940.25(1)(a)), and hit and run involving death (ECF No. 8-1.) The charges were enhanced because it was his second drunk driving offense and because he was a repeat criminal offender. (ECF No. 8-1 at 1.)

         Following a lengthy and emotional sentencing hearing at which many of the direct and indirect victims of Herrmann's crimes asked that he be sentenced to the maximum penalty, and at which his friends and family begged for leniency, La Crosse County Circuit Court Judge Ramona Gonzalez sentenced Herrmann to a total term of initial confinement of 31 years to be followed by 40 years of extended supervision. Herrmann, 2015 WI 84, ¶20; (ECF No. 8-1 at 1.) In imposing sentence, Judge Gonzalez noted that Herrmann had an extensive criminal record and had variously previously received probation, prison, drug and alcohol treatment, fines, and supervision, but none of it had changed his behavior. She highlighted his lack of responsibility-that he turned to alcohol for his problems, that he failed to take advantage of counselling and treatment services and even dismissed their value, and that he failed to maintain any insurance. (ECF No. 8-3 at 132, 134-35.)

         Judge Gonzalez also spent significant time discussing how crimes such as Herrmann's affect the community. She discussed a similar recent drunk driving case. (ECF No. 8-3 at 126.) And she highlighted the “ripple effect” of Herrmann's offenses and how they impact not only the five friends who were in the car into which Herrmann slammed but their families, friends, acquaintances, and even the witnesses to the crash and those who responded to assist, as well as the impact on Herrmann's family and friends. (ECF No. 8-3 at 133.) It was in conjunction with this discussion of how drunk driving crimes affect the greater community that she offered the following:

In 1976 five young women got into a vehicle, and only one of them survived. The two gentlemen in the other vehicle were 17, drunk out of their minds, and they did not survive. That was my personal story, and I will tell you that a day does not go by that I do not think of that personal tragedy, and I wish that I could tell these victims that that pain will one day disappear, but it doesn't. Time makes it less. We redirect ourselves to other things, and a day does go by when we don't think of our loved ones and then we feel guilty at night because that happened, but life does go on, and I am very grateful today that I'm looking at four lovely young ladies and that only one family has to go through the pain that my family and the other three young ladies' families had to endure in 1976.
And so perhaps it is again destiny or a higher power or, Pastor, probably the prayers of many others that bring me to be the judge on this particular case because I probably more than anyone else who would be able to sit on this bench in this county understand the pain that these victims are feeling, but I have had the benefit of all those years since 1976 to understand that I have to make Mr. Herrmann pay, but that nothing I do to him will lessen that pain, and that if I don't do more than just incarcerate Mr. Herrmann, if I don't speak out on behalf of my community today, then this tragedy will continue to happen on our streets, and more families will suffer the way these families suffer today.
So, Mr. Herrmann, you're going to prison today, but that's just part of the story.…

(ECF No. 8-3 at 128-29.)

         Judge Gonzalez was referring to the death of her sister from a drunk driver 35 years earlier. She disclosed her personal loss at the beginning of the sentencing hearing, saying:

Mr. Herrmann, there is a matter that I'd like to put on the record again just before we begin. It's not a secret that I lost a sister to a drunk driver in the summer of 1976. I made this known. I don't believe that this will have any impact on my ability to set that aside and sentence you based upon the information presented on your case and not my sister's case, but I want you to understand right off the get-go that that is something that I have very zealously tried to set aside, and I do believe that I am able to do that. If you have any issues or questions that you want to ask relative to that, you're certainly welcome to ask them now.

(ECF No. 8-3 at 54.) Herrmann responded that he had no questions and, when asked if there were any problems with her proceeding, Herrmann's attorney responded, “No problems.” (ECF No. 8-3 at 54.)

         Nonetheless, Herrmann appealed, arguing that Judge Gonzalez's personal experience and comments evidenced that she was objectively biased, thereby violating his right to due process. The Wisconsin Court of Appeals and Wisconsin Supreme Court disagreed and affirmed his sentence. (ECF Nos. 1-1; 1-2); State v. Herrmann, 2015 WI 84, 364 Wis.2d 336, 867 N.W.2d 772; State v. Herrmann, 2014 WI.App. 38, 353 Wis.2d 304, 84 ...


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