In 2019, a Wisconsin appeals court ruled that liberal Supreme Court Justice Janet Protasiewicz made serious errors when she sentenced an African-American Milwaukee man, Vaylan Morris, in a co-sleeping case. The court reversed Protasiewicz and ordered a new sentencing for the man.

Specifically, the court found that Protasiewicz relied on inaccurate information presented by the prosecutor at sentencing and sentenced Morris based on claims that were not even in the evidence.

The “trial court’s inference that a different medical examiner would have come to a different conclusion regarding cause of death is inconsistent with, and unsupported by, the record,” the appeals court wrote.

The record demonstrates “that the court never considered any other possible cause of death, such as sudden infant death syndrome,” and Protasiewicz’s statements “conflict with the autopsy findings, which stated that a cause of death could not be determined,” the appeals court found, listing Protasiewicz’s errors.

Although the medical examiner said the child’s cause of death could not be determined, Protasiewicz commented that a hypothetical other medical examiner might rule differently, even though there was nothing to support this in the record at all, the appeals court found.

The decision was authored by Judge William Brash who, in 2021, was named chief judge of the Wisconsin Court of Appeals.

The case involved a man named Vaylan G. Morris, who appealed his conviction of second-degree recklessly endangering safety as a party to a crime. He was appealing Protasiewicz’s order denying his postconviction motion for resentencing on the grounds that she used inaccurate information at sentencing.

Morris was charged after his infant daughter died after co-sleeping with Morris and the child’s mother Monica Gonzalez.

The cause of death was not determined, the appeals court decision says. Morris admitted to smoking synthetic marijuana prior to co-sleeping with the child and thought he might have rolled over on her. The child had synthetic marijuana in her stomach, but it was not determined to have caused her death.

In his postconviction motion, Morris argued that Protasiewicz relied on inaccurate information regarding O.M.’s cause fo death. Specifically, the state represented at sentencing that the synthetic marijuana could have been the cause of death, but the medical examiner had advised the state that the ingested synthetic marijuana was not the cause of death.

Protasiewicz denied Morris’s motion, stating that the information presented by the state was not necessarily inaccurate just because it conflicted with the medical examiner’s opinion, even though the state conceded that point. Protasiewicz also stated that she had not relied on the inaccurate information because the sentence imposed was not based on a particular theory of the cause of death and thus any error relating to that inaccurate information was harmless.

The appeals court disagreed.

“We disagree. The record demonstrates that after the inaccurate information was presented by the state, the trial court repeatedly referred to Morris and Gonzalez as having caused O.M.’s death during Morris’s sentencing hearing. Furthermore, the record does not reflect that the court considered any other possible causes of death. We therefore reverse and remand this matter for resentencing,” the court found.

Gonzalez said Morris was so “f*cked up” after smoking the synthetic marijuana that he had fallen on the floor. He was on extended supervision because of a previous criminal conviction for burglary.

Detectable levels of synthetic marijuana were found in the child’s stomach and inside a baby bottle’s residue. The drug had not circulated through the child’s bloodstream or nervous system so the doctor concluded the child’s possible ingestion of the drug “did not play a role in her death.” The autopsy showed no signs of suffocation or any sign that either parent had laid over her body, causing her death.

The doctor suggested that co-sleeping could have played a role in the child’s death because sudden infant death occurs more frequently in cases of co-sleeping but “it is not necessarily related to suffocation.” The cause of death could not be determined.

Morris pleaded guilty and the state recommended he spend time in prison but did not recommend how long.
During the sentencing hearing, when Protasiewicz asked how the child could have died if she wasn’t suffocated, the state responded, the “synthetic marijuana in the child’s system.”

The court called it a horrible horrible completely preventable situation and said that the child “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.”

The court observed, “then we’ve got all this synthetic marijuana in (the child’s system). So not only could you have suffocated her – you certainly had been negligent enough.”

When Morris asked for probation to “pay respects to her grave,” Protasiewicz said, “You want to visit her grave. You know (the) two of you killed her. I don’t even know how you think you have the right to do that and continue to grieve.” She also referred to the death as a “completely preventable tragedy that the two of you caused,” and gave Morris four years in prison and five years of extended supervision, records show.

Morris appealed saying the trial court relied on inaccurate information at sentencing.

The state conceded the information was inaccurate. Protasiewicz denied the resentencing motion saying that even though the state “misquoted” the conclusion on synthetic marijuana playing a role in the death it was “not necessarily inaccurate” because “different medical examiners can disagree about the cause of death,” according to the decision.

The appeals court noted, though, that the doctor had submitted an affidavit in support of the postconviction motion stating that “within a degree of medical certainty” the synthetic marijuana was not a cause of her death, and there was no other report or opinion submitted by any other medical examiner or other expert advancing a different conclusion.

Protasiewicz argued she had not relied on any particular theory of the cause of death but the appeals court found that the trial court’s remarks “clearly indicate its belief that Morris caused the death of O.M.”

The defendant “met his burden showing that the court relied on that inaccurate information at sentencing,” the appeals court wrote.

Protasiewicz found the error was harmless, but, again, the appeals court disagreed with her.

The appeals court ruled that Protasiewicz’s statement was not harmless because she said, “even if (O.M.’s) death could be attributed to some other factor…”

The error was not harmless. The inaccurate information presented by the state “contributed to the sentence,” the appeals court wrote.

Today Morris is in Racine Correctional Institution with a

Before Brash, PJ, Kessler and Dugan, JJ.
Brash, PJ.
2019
Racine CI
Mandatory release date 5/22/23
On 2.5.2020 he was released on extended supervision (DCC hold, back in)
Fred Rosa gave him 3 years 123 days in prison and 5 years extended supervision. No contact/care for children under the age of 12
Four years, five es
Rosa modified to three years and 163 days
A year later allowed contact with 12 yr old daughter