March 28, 2008

CFAF "deemed" criminally inept: Part 5

11. State v. Lackershire 2005AP1189-CR

Lackershire is a very interesting case having to do with an unusual set of circumstances arising from "an alleged act of intercourse," as the majority puts it (reminds me of a few girls I used to go out with) involving a mentally and physically challenged adult female — the defendant — and a 14-year-old boy. Lackershire pleaded guilty to second-degree sexual assault of a child and was convicted.

Then some confusion arose as to the circumstances of the alleged act itself, and whether Lackershire was committing sexual assault or was herself the victim of sexual assault. Lackershire revolves on the circumstances of Lackershire's plea hearing, and in particular the information the court must provide at that hearing, the plea colloquy, which is meant to ensure the defendant understands the nature of the crime to which she is pleading and the various potential consequences of the plea.

Much, much more could be said about Lackershire, but for our purposes, Justice Butler voted with the majority to reverse the conviction based on the infirmities of the plea colloquy and wrote separately to discuss the requirements of the plea colloquy to clearly express to the defendant each individual element of the offense pleaded to. CFAF, obviously, does not dispute Butler counting Lackershire "against" himself.

I'm given to speculate that CFAF spent about four seconds on Lackershire, as compared to the up to eight or nine seconds it devoted to some of the other cases on the list provided to them by the Butler campaign.

12. State v. Howell 2005AP731-CR

Another no-brainer (in other words, an easy one for the anti-Butler contingent). Howell filed a motion to withdraw his plea of guilty to one charge of aiding and abetting first degree reckless injury. Butler joined the majority opinion of Chief Justice Abrahamson, reversing the court of appeals, which had in turn affirmed the circuit court's denial to Howell of a hearing on the plea withdrawal. CFAF concurs. Chalk another one up "against" Justice Butler.

13. State v. Post 2005AP2778-CR

The State of Wisconsin, in its capacity of law enforcement, appealed a judgment of the court of appeals reversing Post's drunk driving conviction. This is the famous "weaving around like a drunken man whilst remarkably remaining in your own lane" standard of reasonable suspicion and police traffic stops. Justice Butler, to the great astonishment of his detractors, once again sided with Justices Wilcox, Prosser, and Roggensack in favor of law enforcement and against a criminal defendant.

CFAF, doubtless to its everlasting chagrin, is forced to not dispute Justice Butler's disposition. So saddened to make such an admission, they felt a powerful thirst coming on but were admonished to take the back roads home.

14. State v. Nelis 2005AP1920-CR

A unanimous court affirms all three of Nelis's convictions, for battery, aggravated battery, and sexual assault against his girlfriend. Once again, Justice Butler joins the most conservative members of the court in affirming Nelis's convictions, without even writing separately. Now into its fourth icy cold can of PBR, CFAF silently agrees.

15. State v. Johnson 2005AP573-CR

CFAF perks up as Justice Butler writes for the majority to reverse Johnson's judgment of conviction so convincingly that even Justice Prosser, one of the court's most "traditionalist" members, is completely suckered into joining Butler's reasoning in full. Clearly, Justice Prosser's indefensible act is not the sort of "traditionalism" that Mike Gableman and his surrogates at WMC are appealing to. Or is it?

CFAF, seizing the opportunity to denote Butler's opinion in Johnson "deems w/ Criminal," for some unknown reason alters its notation slightly to "deems with the criminal." This may or may not have been to offer grammatical penance for "This the same case as #4." Then again, that depends on what the meaning of is is, is?

CFAF is denied any further alcohol.

16. State v. Townsend 2003AP000429-CR

Townsend is the second case CFAF removes from Butler's list of 62. "This was a petition for review and not included by CFAF," reads CFAF's ambiguous message. A bit later on, CFAF clarifies to some extent: "Cases 16, 23, and 52 were not considered by CFAF because they were dismissed improvidently which means the court decided against reviewing them."

Really then. Because also at Justice Butler's interview with the Milwaukee Journal-Sentinel editorial board, he mentioned that if all the petitions for review that the court doesn't accept are taken into consideration, then he decides against criminal defendants 97% of the time. So is CFAF tacitly acknowledging that Butler is correct on that account, since they've never challenged it, and that Townsend should be reckoned into that calculation? If not, because it has to go somewhere, where do they want it put? In neither pro- nor anti-criminal limbo?

Well, let's see what the per curiam (an unsigned decision) court got up to here. The reason the court essentially declared, "Screw this," is because, despite having heard oral argument on the case several months earlier, in the meantime old Townsend had made like the birds and flocked off. Or, as the courts like to say, he absconded. From custody. In Illinois. Or something.

Nevertheless, Townsend was in the process of challenging his judgment of conviction and the court's decision had, among a number of other effects, that of leaving Townsend's conviction in place. That is to say, Butler's participation in Townsend was not "pro-criminal." So is it any wonder why CFAF doesn't want it included in Butler's percentage? But CFAF doesn't explain why.

So, where to put Townsend? Because, after all the docket number contains the -CR suffix, and that is VERY VERY IMPORTANT. On the other hand, if CFAF tosses Townsend back into the "declined review" pile, then it would increase Justice Butler's 97% "anti-criminal" figure, and CFAF can't have that. So I'd like to help out CFAF, but I don't see any reason why the case shouldn't stay on Butler's list. Just because CFAF says it shouldn't be there, without having either briefed the issues or presented oral argument ... sorry about your luck, CFAF.

17. State v. Jensen 2004AP002481-CR

Ah, the famous case State v. Jensen. I'm not going to discuss its details any more than I already have at this point. This is the case pursuant to which our dear friends at WMC referred to the Confrontation Clause of the Sixth Amendment as a "needless technicality." I have no idea why it's on Butler's list of 62 but not on the more recent list of 70. Presumably it was removed for some reason, as opposed to an error. Maybe because it came directly from the circuit prior to the completion of Mark Jensen's trial and that when the Supreme Court decided Jensen, there was no conviction, let alone a "criminal." So it's hard to say, strictly speaking, how CFAF could even attempt to claim, as it has, "CFAF deems with the criminal."

Given the case's procedural posture at the time the Supreme Court decided it, such a categorization is preposterous. It probably should be on Butler's list, at least if I'm to follow my own reasoning in 16. above but still ... I think it's absurd to categorize it "pro-criminal" or "pro-State" or what have you.

Given the the strong likelihood the United States Supreme Court will reach the same conclusion as did Butler did later this year, would CFAF issue a public statement condemning Justices Roberts, Scalia, Kennedy, Thomas, and Alito as "pro-criminal" Justices? I wouldn't hold my breath. I'll deal with it when I get to the numbers.

18. State v. Bruski 2005AP1516-CR

Bruski, facing four drug possession charges, tried to bring a Fourth Amendment challenge against evidence obtained during a warrantless search, claiming that he had an expectation of privacy, which a defendant has to prove before a court recognizes the defendant's standing to continue with the Fourth Amendment argument. The circuit court granted his motion, the State appealed, the court of appeals reversed the circuit court, the defendant appealed, and the Supreme Court affirmed the court of appeals. No standing for you!

Justice Wilcox wrote the majority opinion, and Justice Bradley dissented, joined by Chief Justice Abrahamson. At this point, the anti-Butler forces would expect Justice Butler himself to appear, either writing a separate dissent detailing his own considered analysis of search and seizure doctrine, or else joining the two liberal dissenters.

But this one was a piece of cake for Butler, evidently, because he simply signed on with Wilcox and the other conservatives. I'm not just rambling aimlessly here; that's a very important consideration, in attempting to evaluate Justice Butler's jurisprudence. Because overall, he plays it right down the middle, pretty much, and these charges of activism and "pro-criminal" are really, at their base, made-up nonsense. They really are.

CFAF agrees that Butler's call in Bruski was not "pro-criminal." Fine. Only one problem; like in Jensen, there was no conviction when Wilcox turfed Bruski's motion. So we're going to have to fix that one too. If that's the reason why the Butler campaign removed Jensen but left Bruski on the list of 70, then we need a decision.

Who should I call, the "activist," "pro-criminal" Justice Butler, or "traditionalist" hero, former Justice Wilcox? Eh, they'll probably give me exactly the same "judicially conservative" opinion, as they did in the case itself.

19. State v. Muckerheide 2005AP81-CR

Unanimous court, opinion by Justice Crooks. No separate words from Butler. Two convictions, neither were reversed. Interesting yet rather morbid argument.

Muckerheide was convicted of homicide by motor vehicle while intoxicated and he argued that the decedent, Muckerheide's passenger, would have died whether Muckerheide was intoxicated or not, and that the passenger grabbed the steering wheel while Muckerheide was driving, which caused the accident. But the only evidence Muckerheide had that the (now deceased) passenger grabbed the wheel was that the said passenger had grabbed the wheel in another vehicle previously, and the dude who was driving that vehicle, the dead fellow's father, was the only one who could testify to that "other acts evidence." But Crooks & Co. refused to allow that testimony.

Anyway, CFAF agrees with Butler characterization of the case and in any event probably fell asleep about three run-on sentences ago.

20. State v. Parent 2005AP661-CRNM

Here we have our next disputed case, since Butler claims it towards his 75-ish% and CFAF "deems w/ criminal." Of all the cases on any of the lists all added together, the immediate effect of Parent is quite possibly the most innocuous in the court's history.

Parent simply allows the defendant to view (and not even copy) documents from his pre-sentencing report in order to potentially maybe initiate the preparation of an appeal to his conviction. Also, the unanimous court placed a number of additional restrictions against the defendant, including that he be required to keep whatever information he finds confidential, and that the circuit court retains discretion to redact the documents in order to protect the privacy of individuals named therein.

Parent is a lengthy opinion but nearly all of it is devoted to questions of interpreting State statutes upon which every member of the court agrees.

Parent's three convictions are simply mentioned during the standard reiteration of the case's procedural posture and there is absolutely not the slightest hint of any member of the court even addressing the merits of how Parent's conviction was even obtained. In other words, all of Parent's convictions remain fully intact, and Parent himself has a long, long way to go before he can even begin to challenge them.

To "deem" Parent as "w/ criminal" is simply ludicrous. If anything, it's pro-criminal discovery, and it applies to everyone, even to the innocent who may be wrongly charged with a crime. Such people are clearly not "criminals."



To part 6 ...


Anonymous said...

The work that you are doing to unveil the lurid and frankly sleazy attempts by Gabelman's crew to discredit Justice Butler is simply magnificent. Spectacular stuff!! Keep going....the effort is certainly appreciated!

illusory tenant said...

As are your kind words. Many thanks.