             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      February 14, 2019
               Plaintiff-Appellee,

v                                                                     No. 337134
                                                                      Wayne Circuit Court
CHRISTOBAL MAURICIO DELEON,                                           LC No. 16-008567-01-FC

               Defendant-Appellant.


Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.

RONAYNE KRAUSE, J. (concurring).

        I concur with the majority that the carjacking victim’s police report was inadmissible and
that its admission did not prejudice defendant. I further concur that defendant must be
resentenced before a different judge. I write separately because I believe the majority
understates the severity of the trial court’s misconduct in discussing the race, ethnicity,
nationality, sexuality, or religious beliefs of a criminal defendant while passing sentence. To do
so is not only unlawful and unethical, but makes a mockery of our justice system and the
fundamental rights critical to a civilized people. This Court has a duty to take note of and stand
up to such abuses of authority.

                  I. THE TRIAL COURT’S COMMENTS AT SENTENCING

       At sentencing, the trial court stated:

                You, sir, are a discredit to every immigrant who comes to this country
       seeking a better life for themselves and their family. You, sir, are fodder for the
       people who believe that a wall should be built to keep Mexicans out of this
       country, to keep Hispanics out of this country. It’s people like you and your
       friends who did what they did to this woman is the reason right now we have a
       president and a whole bunch of people following him believing a wall should be
       built to keep Latinos out of this country.

MCL 769.34(3)(a) limits a trial court’s discretion to depart from the applicable guidelines range
and provides that “[t]he court shall not use an individual’s . . . race, ethnicity, alienage, national
origin, . . . to depart from the appropriate sentence range.” Not only is there applicable law
regarding sentencing that prohibits the behavior exhibited by the trial court, but the Michigan
Code of Judicial Conduct flatly rejects such behavior as well. The pertinent canons state:

       Canon 2(B): “A judge should respect and observe the law. At all times, the
       conduct and manner of a judge should promote public confidence in the integrity
       and impartiality of the judiciary. Without regard to a person’s race, gender, or
       other protected personal characteristic, a judge should treat every person fairly,
       with courtesy and respect.”

       Canon 3(A)(1): “A judge should be faithful to the law and maintain professional
       competence in it. A judge should be unswayed by partisan interests, public
       clamor, or fear of criticism.”

       Canon 3(A)(9): “A judge should adopt the usual and accepted methods of doing
       justice; avoid the imposition of humiliating acts or discipline, not authorized by
       law in sentencing and endeavor to conform to a reasonable standard of
       punishment and not seek popularity or publicity either by exceptional severity or
       undue leniency.”

       Canon 3(A)(10): “Without regard to a person’s race, gender, or other protected
       personal characteristic, a judge should treat every person fairly, with courtesy and
       respect. To the extent possible, a judge should require staff, court officials, and
       others who are subject to the judge’s direction and control to provide such fair,
       courteous, and respectful treatment to persons who have contact with the court.”

        The trial court’s comments about defendant’s Hispanic heritage are horrific, as confirmed
in part by the prosecutor in their brief, who acknowledges that the trial court’s comments were
“inflammatory” and “unnecessary.” Moreover, these statements are meant to echo deeply
disturbing rhetoric that paints Hispanic immigrants as rapists, murderers, and thieves. There can
be no doubt that the trial court had exactly such characterizations in mind by stating, “[i]t’s
people like you and your friends who did what they did to this woman is the reason right now we
have a president and a whole bunch of people following him believing a wall should be built to
keep Latinos out of this country.”

         The inclusion of such statements on the record leaves me with no choice but to assume
that they were influential in the trial court’s decision. As a court of record, we are restricted to
the most obvious implication of any statements on the record; we are in a poor position to impart
intent, tone, purpose, and the like, to the mere written word. “Courts cannot speculate beyond
the reasonable import of the words employed.” Lane v Ruhl, 103 Mich 38, 42; 61 NW 347
(1894). Given that the trial court made inappropriate comments regarding defendant’s race in its




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explanation of the sentence it was about to hand down, I assume that the court intended those
statements as part of the rationale for its actions.1

         The utterance of political speech from the bench creates uncertainty, questions of
partiality, and leaves serious doubt about the wisdom of judicial decisions. A fair trial requires
both the actual absence of bias and “the appearance of justice.” Glass v State Highway Comm’r,
370 Mich 482, 487; 122 NW2d 651 (1963) (quotation omitted). The “appearance of justice”
requires trial judges to refrain from “giv[ing] vent to personal spleen.” Offutt v United States,
348 US 11, 14; 75 S Ct 11; 99 L Ed 11 (1954). Thus, “appearance of justice” is not some mere
turn of phrase. Rather, it is the summation of one of the founding principles of our judiciary: that
our justice system relies on the trust of the people and their representatives as the source of its
power. Alexander Hamilton noted as much: “[t]he judiciary, on the contrary, has no influence
over the sword or the purse; no direction either of the strength or the wealth of the society; and
can take no active resolution whatever . . . and must ultimately depend on the aid of the
executive arm even for the efficacy of its judgments.” The Federalist No. 78 (Hamilton)
(Rossiter ed, 1961), p 464.

        In order to maintain that trust, a judge must be seen to stay focused on truth, integrity,
and justice; even if doing so may at times run against the currents of popular opinion, tranquility,
or political expediency. Our system of governance demands that judges be of a defined moral
character and demands adherence to a strict code of ethics. The judge holds a revered and
crucial place in our political system as the arbiter of truth and justice, and actions that tarnish or
cast doubt upon that position damage not only the judiciary, but the law itself, and ultimately our
entire society.

        I recognize that defendant committed horrifying and outrageous criminal conduct.
Nevertheless, if the judiciary does not maintain a modicum of respect for all persons brought
before it, the courts risk losing the respect of the people for the law. It is indispensable to both
justice and civilization that judges show themselves to be above yielding to denigrating personal
invective. The issues discussed here go beyond a single defendant in one criminal case. They go
to the core of our ethics and beliefs as a State and as a Nation. Every person under the
jurisdiction of the State of Michigan and the United States of America must be seen as equal in
the eyes of the court; our society cannot survive were it to be otherwise.

                                                              /s/ Amy Ronayne Krause




1
  Additionally, this is not the first time the trial court has been chastised for committing
improprieties at criminal sentencing. See People v Pennington, 323 Mich App 452; 917 NW2d
720 (2018); People v Walker, unpublished per curiam opinion of the Court of Appeals, Docket
No. 327063 (Decided December 1, 2016).


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