There are two candidates on the ballot:
Here, have a cat picture, so that later I can put in a screen shot and it won’t take over as the “featured image.”
There was a judicial candidate forum back in September that I didn’t attend, but heard a few things about, and one of the things I heard was that at the forum, Marcus Almon said that Judge Millenacker’s record showed bias against non-white defendants. That was enough of a concern that I followed up with both candidates.
Marcus Almon sent me a table from the Minnesota Sentencing Guidelines Commission showing the racial breakdown of people who received a felony probation sentence from Judge Millenacker from 2001-2015 and whether that sentence was later revoked. In his e-mail, he said, “She revoked the probation of 17% of those on probation to her. However, she revoked the probation of Whites at 12.8% but African-Americans at 21.9% and Native Americans at 20%. Nearly double that of Whites.”
So, there are a couple of issues with this statement, and here’s the first: the original sentencing judge, and the judge who decides whether or not to revoke probation, are not necessarily the same. The footnote at the bottom of the page notes this: “Judge refers to the original sentencing judge, not the revocation judge.” The MSGC does not track the revocation judge. Almon says that while they are not necessarily the same, they are usually the same. Millenacker says that’s the theory, but not the practice, and that these numbers do not represent her in any particularly useful way.
“When someone on probation in Ramsey County violates probation and goes back before a judge, do they normally see the same judge or a random judge” seemed like the sort of question that should be answerable. FYI, if you start calling offices and asking this question, they will assume you want to know this because you’re a probation violator who wants to know which judge you’re likely to get, and “no, I’m a blogger, I want to know this for a post” is not at ALL confusing and does not sound at ALL like “I’m asking for a friend.”
Anyway, I think the most authoritative answer I got was a reply to an e-mail I sent to the Probation Office:
I can answer your question, but unfortunately it is a little complicated. When a probation violation is submitted, the paperwork goes to the sentencing judge, and typically that Judge is the one who will review and decide to sign, or reject, the probation violation. The exception is if the matter is time sensitive and that Judge is not available. Then the sentencing Judge will have an assigned back up address the issue.
Very similar if the matter goes to a hearing. The sentencing judge will very often be the one the client sees in the hearing. However, since there needs to be a hearing within a defined time period, it is possible when the client is picked up, the Judge may be unavailable, so another backup Judge would need to be there for the hearing to take place within the specified time.
And if the judge has moved to a new type of case?
Most of the time if the Judge is rotated out to another position, then the backup Judge will handle the cases.
Judge Millenacker’s assignments are on her courthouse bio. She was appointed in 2010. She did Adult Criminal from then until December 2013, so three years. She then did Family and Juvenile Delinquency from January 2014 through February of 2017. (She’s in Civil, Trust, and Probate now.) The probation revocation data runs from 2010 through 2016. So for half that time, she was definitely not the one making the decisions on probation revocation.
Marcus Almon said, in his followup e-mail, that even if another judge heard some of Millenacker’s probation violations, “it’s hard to comprehend how the numbers would be so high for African-Americans and Native Americans from those cases unless the other judges were extremely biased.”
Here’s the chart with the statistics that I’ve been talking about this whole time:
Table 3: Received a Felony Probation Sentence in the 2nd Judicial District by
Judge Millenacker, 2001-2015, Revoked through 2016 by Race/Ethnicity
 Judge refers to the original sentencing judge, not the revocation judge. Judge Millenacker had only one case in 2015 and no cases in 2016.
So assuming I am correctly understanding everything here (I am not a lawyer), here’s what this means. “Dispositional Departure” means “Did we depart from the recommended sentencing guidelines?” “None” means “no, we did not; they got the recommended sentence.” “Mitigated” means “yes, we did; we gave them a lighter sentence than was recommended by the standard guidelines.” And then there’s a separate column for “revoked” so that you can see how many of these people later had their probation revoked.
I suck at reading tables like this, so my apologies in advance if I screwed up the math here.
I’m going to say that if your initial sentence was mitigated, and then you screwed the pooch again, and your probation gets revoked, you don’t have a lot of grounds for complaint. And if you compare black and white convicts here, it looks like the people who got a lighter sentence that the Sentencing Guidelines thought they had coming at the time of their initial sentence had about a pretty consistent 50% probation revocation rate if they violated it. It’s also worth noting, though, that the numbers here are incredibly small. There were two white guys, nine black guys. The smaller your numbers are, the easier it is to get a skewed result more or less randomly.
Looking at the people who did not receive a lighter sentence, we’ve got 76 white people who violated probation, 9 of whom had their probation revoked. That’s about 12%. There are 96 black people who violated probation, 19 of whom had their probation revoked; that’s 20%. If we equalized the numbers based on percentages, either we should have sent 7 fewer black people to prison for their probation violations, or we should have sent 6 additional white people to prison.
How significant are these numbers? I don’t know. I am going to say that the numbers for Native American defendants are basically meaningless — there were a total of 5 defendants, 20% of whom — which is to say, one of them — had probation revoked. The fact that Marcus Almon even included the Native American statistic as an example of bias makes me suspicious of his ability to analyze data.
Judge Millenacker provided the data on her actual sentencing practices, as well. All the data here comes from the Minnesota Sentencing Guidelines Commission. Apparently Marcus Almon requested this data in late summer, and got numbers that backed up his claim that Judge Millenacker is biased, but the MSGC now says those numbers are in error:
So here’s that chart. Just to untangle the language here a little bit: “Departure,” again, indicates the times she didn’t follow sentencing guidelines. “Aggravated” means that she departed from sentencing guidelines by giving a harsher sentence; “Mitigated” means she departed from sentencing guidelines by giving a lighter sentence. When the MSGC person says that the people with harsher sentences “requested execution of sentence,” what she’s saying is that these were people who could have been given probation rather than prison time, but they requested prison time instead. (Sometimes people request this because probation sentences are often longer than prison sentences, and they just want to serve the time and get it over with. Other times they might be charged with a felony in another county and facing prison time for that anyway, and they want to serve their sentences concurrently.)
Here’s the table:
Table 1: Departure Rate by Race for Felony Offenses Sentenced by Judge Millenacker: Sentenced 2010-2016
 Judge Millenacker had no cases sentenced for a criminal felony offense in 2016.
(She apparently did give one felony sentence in 2015. There are certain types of felony cases that get shared around to judges regardless of what their current rotation is; one of them is murder. She is currently overseeing a cold-case murder trial, even though she’s working in Civil, Trust, & Probate.)
Judge Millenacker gave mitigated sentences — lighter sentences than were recommended by the sentencing guidelines — about 19% of the time.
Of the 129 white defendants, she gave a mitigated sentence to 19 of them, 15%. Of the 158 black defendants, she gave a mitigated sentence to 32 of them, 20%.
If she gave lighter sentences to white defendants at the same rate as the black defendants, an additional 6 white defendants would have gotten probation instead of prison time. Or, if she’d treated black defendants more like white defendants, an additional 8 would have gone to prison.
Again, how significant are these numbers? I don’t know. I don’t think you can say that the probation revocation numbers are significant, and these aren’t, though.
Notes on the reasons for the lighter sentences say:
The most common reasons cited for the mitigated dispositional departures were amenable to probation (11 cases, 55%); amenable to treatment (8 cases, 40%); shows remorse/accepts responsibility (8 cases, 40%); and compliance with probation/extended supervision (4 cases, 20%). The prosecutor agreed to / recommended / did not object to the departure in 13 (65%) cases, objected to the departure in 5 (25%) cases, and in 2 cases the position of the prosecutor was unknown.
As a general rule, I favor keeping incumbent judges, barring something really strikingly bad. Racial bias is really strikingly bad; however, given the others who were involved in decisions about people Millenacker put on probation, combined with Millenacker’s felony sentencing data, I don’t think the data demonstrates racial bias, or at least, I don’t think the data demonstrates racial bias specific to Millenacker.
When I talked with her on the phone, she talked about her work with juveniles and with child victims of sex trafficking. She talked about trying to provide a stable presence in the lives of delinquent kids, and the ways in which she’d tried to make sure they knew they were cared about. I think she’s a solid judge. I think she cares about racial equity. I’m not sure I’m convinced that she’s definitely never showing racial bias. (I’m not convinced she is, but I’m also not entirely convinced that she isn’t.)
Marcus Almon works in the public defender’s office and as a defense lawyer in private practice. If you search out his name, you’ll find him working as the defense lawyer in a number of moderately high-profile cases. I think he’s probably adequately qualified to be a judge, although he doesn’t make me think “oh, this guy looks so awesome, he should definitely be a judge.” If you look at these stats and want to get rid of Millenacker, I didn’t find anything about Marcus Almon that makes me think he’s disqualified for the bench.
As a final note: I am confident that if you sat in a Ramsey County courtroom, watching the judge make decisions on probation violations, mitigated sentences, etc., and at every break the judge sat down with you to explain exactly why they decided the way they did for each case, they would have a reason for every single one that was not the person’s race, no matter how much bias showed up in their data. That’s literally the thing about unconscious bias. Unconscious bias is not the thing that shows up with, “we’re going to have a zero tolerance policy for Somalis.” Unconscious bias is thinking “she looks angry, not remorseful.” Unconscious bias is thinking “he looks scary, I can see why the police thought he was a threat.” It’s thinking black kids are older than they are, more responsible for their actions at a younger age.
One thing I learned writing about this race is that there’s an office in the State of Minnesota that gathers these statistics and that anyone can request them. One of the things I immediately wondered is whether judges are routinely provided with their own statistics. Why not run these reports for judges every few years? Do a report on outcomes by gender while you’re at it. And just send them to the judges so they can see how they’re doing.
(For judges reading this: you can request your own stats. Take a look. And if you find something you don’t like in your own history and your own practices, then do something about it.)
EDITED TO ADD: my father, Bert Kritzer, is a Political Science professor and sent me an e-mail addressing the question of the significance of the numbers. Regarding the mitigation in felony sentencing:
Imagine that you put you put 129 white marbles plus 158 black marbles in a hat.
In a second had you put 51 green marbles (the total number of mitigated sentences for blacks and whites) plus 236 red marbles (total number of nonmitigated sentences) in a second hat.
You then pulled one marble from hat 1 and one marble from hat 2 and matched them. There’s about a one out of four (.22) chance that you would get a pattern as extreme or more extreme than what you see in the mitigation table in your post.
I asked about the probation revocation data and he said if you did the same randomized exercise you had a .114 chance of that result through random chance.
EDITED 10/27 TO ADD:
Almon is advertising via a promoted Tweet about this 2017 Fox News story about a custody dispute in which Millenacker was the judge:
(You can get straight to the Fox News story here.) So, let me just note that when I did this writeup two weeks ago, I did run across this story. Took a quick look. Here’s what jumped out at me:
The bitter three-year custody battle is told in hundreds of pages of court documents with accusations from both sides, as well as disagreements over parenting time, schools and health care for the children.
In the process, Carlson went from joint custody of his daughters to two hour long intensely supervised visits a week.
What that said to me, loud and clear, was that there was way more to this story than BAD PREJUDICED JUDGE HOLDS PTSD THERAPY AGAINST VET, and I shrugged and left it out. But Almon is making it an issue, so okay, let’s do this.
David Carlson ran and lost in the Republican primary for the Senate race in 2014. He’s a former Marine. His twin daughters would’ve been born in 2007, I think.
As the Fox journalists note, it’s hard to know what the hell is going on with a child custody case from the outside. But in fact you can find a fair amount of stuff about this one online, because David put it there. He has a Scribd site where you can find fourteen documents he’s filed with various courts and you can also find the decision from the Court of Appeals regarding a harassment restraining order he was slapped with a few years back.
David learned somewhere along the line how to write briefs and appeals and stuff but he is not a lawyer. For the most part, he handled this custody battle by himself. If you’re thinking, “…I think I see where the problem might be,” buckle in.
The documents are frankly really confusing (one is over a hundred pages long) but from what I can tell, in 2016 his ex-wife was applying for a renewal of a Harassment Restraining Order she’d gotten two years earlier, which had expired. She tried repeatedly to have him served, and to quote the Court of Appeals decision, “Law enforcement’s attempt to serve appellant with the ex parte order was unsuccessful because appellant had moved to an unknown address.” I strongly suspect that the judge thought he was trying to avoid being served, to drag things out and be a dick. A hearing scheduled for October 17, 2016, was postponed to the 31st, then to December 12th, and the judge gave permission to do the publish-in-a-newspaper thing instead of personally serving him.
On December 1st, 2016, David filed a motion requesting a delay because he’d been in a car accident in mid-November and attached two doctor’s notes. Neither provided any detail, and (this was probably the biggest issue) one said he was fit to return to work and school with no restrictions but added that he should be excused from his upcoming court date.
The delay was not granted and the hearing was held on December 12th. Since David didn’t show up, the order was granted more or less by default — if you don’t come to court to present your side, the assumption is that everything the other side said was true. Do not ever blow off a court date.
Things his ex said at this hearing: that he’d sat outside her house in his car during parenting time. That he shoved her into a door at a school event, in front of witnesses. That he’d called the police on her repeatedly as a form of harassment.
The order was granted here, and let me just note — that wasn’t Judge Millenacker but a completely different judge in an entirely different county. The harassment hearing took place in Anoka County. Judge Millenacker was handling the custody case.
He was also during this same period of time trying to endlessly drag out a custody hearing, which you can read about here. Judge Millenacker was openly skeptical of his inability to come for the hearing, but granted a delay anyway, scheduling the evidentiary hearing for January of 2017.
It is possible, although I’m not 100% sure, that the core grievance highlighted by the Fox News piece started with that request for a delay. Judge Millenacker granted it but said that since he’d claimed that he was too medically impaired to reasonably go forward with the custody case, she wanted him to provide evidence by releasing a bunch of medical records. Although she wanted stuff from the November 16th and 17th visits. (From the tone in that judicial order, I kind of wonder if she thought he was full-on bullshitting that there had even been an accident.)
If you want to read the most detailed version available, David Carlson has uploaded a 126-page complaint that he filed with the US District Court in which (I think? I’m not 100% sure?) he’s trying to sue Ramsey County, Anoka County, and the White Bear Lake School District, the last because they allowed a Guardian ad Litem to interview his children privately. He goes into a lot of detail about his grievances against his ex-wife, the counties, Judge Millenacker, the Guardian ad Litem who saw his kids and also the GAL system as a whole. He complains about the fact that the family service center where he had his supervised visitation had a mouse problem. He complains all over about his ex-wife not living up to her end of the custody arrangement, which is in fact a legitimate complaint, but there’s also this bit:
48. Subsequently, during the following month of January 2014, there were one (1) schooldays off for teachers training, and three (3) emergency snow and frigidly cold days below -40 degrees (F) in the region that forced school closures that were later rescheduled, but fell exclusively on Plaintiffs days he was to receive the children for his court-ordered parenting timefrom his ex-wife following the school day.
49. On the first occurrence, Plaintiff informed his ex-wife he would be fine with getting the children anytime after 3:00 PM on 7 January, 2014 when their first grade class would typically be released, and was open to a time window as well if need be for convenience.
50. Mrs. Dickenson responded she was unwilling to transfer the children at or around that 3:00 PM, and stated she would only meet Plaintiff after sunset at 6:00 PM, per their weekend non-school day schedule which she decided to revert to.
51. Plaintiff informed his former spouse he did not want to involve the police, however, his time begun on weekdays during the school year at 3:00 PM, and if she did not meet Plaintiff by at least 4:00 PM he would seek a domestic escort with either BPD or Saint Paul Police Department (SPPD) to get his children, and safely transport them from either Saint Paul or Blaine to Woodbury, where Plaintiff and his daughters reside.
So according to David, he told his ex-wife that he’d be fine getting the children anytime after 3. She said, “okay. Come get them at 6.” He said, “I don’t want to involve the police, but my time begins on weekdays at 3 p.m. and if you don’t meet me by 4 p.m. I’m coming with the police.” (And does! Multiple times!)
I don’t know whether he should have lost custody of his daughters. I can tell you a couple of things for sure, though.
- Judge Millenacker is not the only judge who got really mad at him while dealing with him. He seems to be incredibly good at infuriating judges, and not just because he’s in there without a lawyer.
- If you’re furious that someone thinks you need an evaluation to demonstrate that you’re not mentally ill, filing a 126-page document suing two counties and a school system and recounting every single way in which you feel you’ve been wronged is probably not the way to handle the situation.
- If you’re ever embroiled in a vicious custody dispute, a lawyer is not optional.
One of the really odd things is that while Judge Millenacker ordered him to get a mental health assessment, there’s nothing in here that actually suggests she’s likely to hold PTSD treatment against him, although presumably that’s why he doesn’t want to turn over his records.
Anyway, other people might read this case way differently from me, but … I don’t look at this and think, “that Judge Millenacker has got to go.”