CFAF "deemed" criminally inept: Part 1

Overture: "Family" values

Recently, Burnett County Judge Michael Gableman began repeating a mysterious — some might call it "shadowy" — number that had been circulating in some advertising materials originating with an outfit called the Coalition for America's Families (CFAF), which operates out of Middleton, WI and claims to be dedicated to the "sanctity of life" and so forth.

CFAF's chairman is a gentleman called Steve King, and CFAF's website describes Mr. King as "one of Wisconsin's leading conservatives" and a former chairman of the Republican Party of Wisconsin. You get the picture. CFAF has claimed that Wisconsin Supreme Court Justice Louis Butler "has sided with criminals nearly 60% of the time."

Regular readers of this blog are no doubt aware that I am, to say the least, not exactly enamored with conservative Republicans generally and particularly those that pontificate from organizations adorned with the word "Family." Experience has taught me not to trust them. And what follows is a polestar example of why I don't trust them and furthermore why they shouldn't be trusted. By anyone.

CFAF's disingenuous gameblemans

Let's set aside, for the time being, the whole idea of evaluating a judge based on "siding with criminals," which is immediately indicative of an absurd methodology and especially absurd with regard to the functions of a State's highest appellate court, which spends most of its time in the area of criminal law dealing with complex and subtle constitutional and procedural questions and where in most cases "siding with criminals" more accurately means "applying and enforcing the Bill of Rights."

Do we have a problem with the Bill of Rights generally? Of course not. Can reasonable minds differ over the scope of the protections afforded by those rights? Of course, and we do. Anybody that's ever set foot in a law library — or surfed the intarnets tubes, for that matter — knows that.

But that is not how CFAF has framed the question. It has already decided, in advance, that whenever Justice Butler or, by extension even the most judicially conservative of his colleagues with whom Butler often sides decides a case the "wrong" way, they are not interpreting the Bill of Rights, they are "siding with criminals." The inherently farcical nature of CFAF's project should be blindingly obvious from that ridiculous and constitutionally offensive attitude alone.

In short, attempting to quantify such a comically loaded description is a fool's game from the outset. Yet, we shall proceed nevertheless.

Recall — and this is crucial — that it was supporters of Gableman and Gableman himself that began circulating what is, as I shall presently demonstrate, essentially a complete fabrication, and a misguidedly and apparently deliberately twisted one at that.

Up until now, nobody has really known what that statement even means. Least of all, amazingly, Mike Gableman himself. In one of the more outrageous statements during a campaign overflowing with absurdities and deliberate misrepresentations, Gableman actually announced in public that, despite his repeating the claim to all who would listen, Gableman didn't know the first thing about what it even meant, that he didn't know whether the figure was 30%, 60%, 90% or what. And again, yes, he actually said it out loud. So loud that it was even reported by the Milwaukee Journal-Sentinel. But nobody, especially those among Gableman's supporters, seemed to care.

As a matter of fact, they started repeating it too.

Butler responds

In the meantime, the Butler campaign undertook a review of the cases of its own. While nobody, least of all Michael Gableman, seemed to know how the "sided with criminals 60% of the time" came about, Butler, speaking to the Journal-Sentinel's editorial board, was quite clear about what criteria his campaign had used. Butler said that where criminal cases and related procedural issues were involved, his campaign went through the cases and counted each conviction individually.

For example, in a Supreme Court case dealing with a defendant convicted of three separate charges, where Butler had voted to reverse one conviction but leave the other two intact, then he would count one against his record dealing with criminal defendants and two in favor of it.

This is, essentially, how the Butler campaign came about its stated figure of 70:30 (or 75:25). 70:30 means that of all the convictions related to the cases put before the Wisconsin Supreme Court during Butler's tenure, Butler's own votes would have reversed 30% of the convictions, and 70% would have the convictions remaining in force, regardless of whatever related procedural issues the court was addressing.

As a matter of fact, Butler counted against himself his own dissenting votes, where he was in the minority, ruling that a conviction should be reversed, even though it never was, because, obviously, a dissenting vote carries no weight to reverse a conviction.

Butler's approach to reaching his number makes eminent practical and legal sense. Let me explain why.

A criminal law primer

At the heart of every criminal case lie convictions. Convictions are obtained when (1) the defendant pleads guilty to violating one or more specific State statutes and is thereupon convicted by a judge and/or when (2) the defendant is found guilty after a trial of violating one or more State statutes and is thereupon convicted by a judge.

Moreover, the United States Constitution explicitly requires due process of law. Due process of law refers to, at a minimum, those procedures to which the accused is constitutionally entitled as the government goes about meeting its burden of proof in demonstrating the guilt of those accused of crimes who, up until that point, the law presumes to be innocent.

Due process itself is a gigantic and complex area of the law and applies to every aspect of the criminal process from police investigation to the initial filing of charges against the defendant through hearings and trial to conviction, sentencing, and beyond.

For these and still other reasons, due process of law is one of the absolute bedrock principles contained in the U.S. Constitution. It's importance cannot be overstated. And, never forget, the U.S. Constitution is, quote, "the supreme Law of the Land; and the Judges in every State shall be bound thereby."

Sometimes a convicted defendant appeals his conviction directly. But most of the time a convicted defendant appeals some aspect of the process that led to the conviction. That might be a question of the admissibility of evidence presented at trial. It might be the circumstances under which the defendant pleaded guilty. It may be some action taken — or not taken — by the police, in which still other provisions of the Constitution are implicated.

But the point is, ultimately, that if there is any common denominator in all criminal cases, it is the conviction. That is what criminal law is all about: the State seeking convictions, and the defendant often seeking to avoid them. That's what it boils down to.

Flagrant acts of "journalism" alleged

As I said, the initial figure accusing Butler of "siding with criminals 60% of the time" originated with CFAF and was repeated by Mike Gableman and others. Butler challenged Gableman to back it up but as I also noted, Gableman admitted he didn't even know what it meant. But that didn't stop Gableman from repeating it anyway.

Then apparently the Butler campaign produced a list of 62 cases according to counting convictions, and a person by the name of Jessica McBride got her hands on it, and produced a vicious attack piece against Butler that proved at least two things: she didn't know what she was looking at and she didn't realize — or check to learn — that the list of 62 cases was an intermediate, draft working copy and that the Butler campaign had produced a more complete list in the meantime, containing 70 cases.

Although McBride purported to attack Butler's claimed 70% figure, she quite obviously didn't know how to go about deconstructing it, because she didn't know the basis for the number in the first place. Instead, she focused on some brief descriptions noted beside the names of the cases on the list. But you don't attack a numerical calculation by interpreting words.

It could have said, for example, "vibraphone kyrgyzstan wankel rotary engine" beside the case name for all it mattered. What did, and does matter was the typical numerical designation assigned to the case, for example, (2:1), which means that the case came to the Supreme Court involving three convictions — or "counts" — and that Butler voted to reverse one of the three and leave the other two intact.

The accumulation of these numbers leads to the 70% overall figure. It's as simple as that. It's true that some of the "vibraphone kyrgyzstan wankel rotary engine" descriptions are not quite accurate in the context of what really happened in the Supreme Court opinion, but has zero effect on the numbers.

Unfortunately in her zealously partisan ignorance, McBride went bananas over the "vibraphone kyrgyzstan wankel rotary engine" bits, and produced her outrageously over-the-top diatribes.

After McBride learned that there was another list of 70 cases, she went ahead and performed the same wildly inaccurate "analysis" on it.

The enablers I

While all of this was immensely amusing to me and several others, apparently a few more sober observers actually took it seriously. Patrick McIlheran of the Milwaukee Journal-Sentinel editorial board, for example, who trumpeted McBride's laughable attempt at smearing Justice Butler by attacking the numbers with the words and has since gone on to continue defending it.

McIlheran, of all people, is about the last person that should let himself get duped by McBride's shoddy labors, because he literally sat across a table from Justice Butler as Butler explained how he produced the 70% figure. McIlheran continues to insist McBride's bizarre efforts have merit — as does Professor Rick Esenberg of Marquette University who, to his credit, has at least backed away from his initial and equally baseless charges that Butler somehow "cooked the numbers" — but for some reason McIlheran strikes me as a potentially reasonable fellow, and I have faith he'll come around.

McBride, obviously, is a total write-off.

Which brings us to our latest development: CFAF's hilariously desperate attempt at justifying its "Butler sided with criminals 60% of the time" mythology. FAIL.

To part 2 ...