March 29, 2008

CFAF "deemed" criminally inept: Part 7

31. State v. Anderson 2004AP2010-CR

Five separate errors by the circuit court at trial, plus jury prejudice. Judgment of conviction reversed, Butler and Prosser sign on with the majority. Count one "against" Justice Butler. CFAF misses not only its opportunity to object, but also its chance at a motion to strike.

Once again, how absolutely ridiculous to count "against" a State Supreme Court Justice a decision in favor of insisting that an individual under the U.S. constitutional system should receive a fair trial. But, Butler's detractors insisted on playing this stupid game, and because Gableman and his supporters have made what is supposed to be a non-partisan contest of legitimate ideas into a sleazy partisan campaign of falsehoods, misrepresentations, and phony GOP "gotcha" tar and feathering, Butler has little choice but to respond.

And, also once again, in that Butler has provided the common denominator of convictions for evaluating each case, he is correct. Professor Esenberg continues to insist that "rulings in favor of the defendant's interest" or some such thing is the proper denominator. What Esenberg continues to ignore, however, is that "rulings in favor of the defendant's interest" is far too subjective a determinant.

Very early on in their careers lawyers — together with anyone in any scientific or rigorous philosophical discipline — learn about objective vs. subjective tests. And Esenberg knows as well as anybody that one "ruling in favor of a defendant's interest" is hardly equal to another. Compare, for example, the case of State v. Parent (see # 20. below). Parent won the right to sneak a glance at his pre-sentencing report. But he couldn't copy it, he couldn't repeat what he saw in it to anyone, and the government retained the discretion to redact it in advance. Whoop-de-do. You'll never hear "law and order" Mike Gableman make a major league stink about that one.

On the other hand, consider the case of State v. Knapp (which Gableman seemingly hasn't even read — read the post and then the first comment. And if Dad29 turns up, just pat him on the head and ignore him). State v. Knapp, Gableman and his screeching monkey pals like Charlie Sykes will tell you, has effectively begun the inexorable collapse of Midwestern Civilization As We Know It.™

Incidentally, Gableman was still droning on monotonically about Knapp during last night's final debate. And once again, Justice Butler challenged Gableman to address the merits of Knapp, and to describe how Gableman would have decided or at least approached the case, and in particular its relationship to the two U.S. Supreme Court cases that Butler spent 46 pages of the opinion (number one monkey pal says Butler "ignored" them) engaging, analyzing, and applying against the facts and the relevant existing Wisconsin caselaw.

Hell, I bet even I could have a damn good discussion with Butler on Knapp, and maybe even compellingly argue the opposite side, and I'm just some anonymous blogging punk. Gableman, predictably, just ignored Butler's challenge and jabbered robotically some more about his salad days as a prosecutor in Ashland County or something.

Not only that, but many — nearly all, actually — "rulings in a defendant's interest" are not only not specific to that defendant, but the underlying reasoning sets a rule of constitutional law, whether creating a new one, broadening or narrowing existing ones, or affirming without either broadening or narrowing some imperative of constitutional protection.

And, as I'm almost exhausted from repeating, constitutional protections are for ALL Americans, not just that defendant in a particular case.

Convictions, on the other hand, are specific to that defendant and are objectively equal, whether for first-degree homicide or theft under five grand. That's why they're the best denominator for this sort of exercise, and why Butler is correct to base his representations on them. Besides, Butler should know, he's been either practicing criminal law or judging for nearly 30 years.

Indeed, isn't that what's under discussion here, Butler's decisions as a Justice on a State Supreme Court? Land sakes. Yet Esenberg insists we should use, of all people, Jessica McBride's method and interpretation of caselaw? It's almost perverse.

Especially considering Esenberg has been all over the map in terms of attempting to defend McBride's demonstrably sloppy work. Last I saw, he was disappearing into the horizon, carried away by the shifting sands of the Gobi.

Most recently he's telling us that it's not an evaluation of Butler's record anymore, now it's a comparison of all the Justices' records. Well, look closely again at McBride's pretty bar charts. Because McBride is still claiming "58%" — the exact same number CFAF arrived at, and we're seeing what a load of crap that is.

Now he wants us to not only accept her "method" with respect to Butler's record, but now to all the other Justices too? Is he kidding?

This is the same Jessica McBride who will refer to a mentally and physically disabled victim of sexual assault as a "criminal" so long as it suits her cheap partisan political purposes. Or accuse Butler of lying, or deliberately deciding cases to further his own personal ambitions, none of which she has ever provided the slightest whiff of evidence for. It's outrageous, to say the least.

I would imagine Louis Butler has spent a considerable amount of time thinking about criminal law quite a bit. More, I daresay, than the average Marquette law professor (with the possible exception of the formidable and deservedly legendary Dan Blinka).

And more, I am certain, than a partisan hack like McBride.

If you still don't think convictions are a suitable denominator by which to assess these cases, ask any prosecutor. Convictions are what they're after, and what drives them. Their own job performance is evaluated according to securing convictions. Theft, murder, battery, carnal knowledge of chickens, whatever.

Hey, why not ask Mike Gableman, he was a prosecutor in Ashland County in 1999. More than likely the poor sod is just crying out for a question that he can actually engage and answer.


To part 8 ...

1 comment:

Anonymous said...

"Once again, how absolutely ridiculous to count "against" a State Supreme Court Justice a decision in favor of insisting that an individual under the U.S. constitutional system should receive a fair trial."

That's the single most important point to emphasize in this whole furball. Butler felt the need to respond somewhat in kind to the weird claims about his "voting for defendants" disproportionately. And you've kindly undertaken a discussion of the cases, showing how silly the percentage claims against Butler's rulings really are.

The silver lining is that we get to see interesting discussions of the cases and Butler's rulings -- summaries of the raw data, basically -- here on IT.

But it's a good thing the write-ups have been so good, because the whole line of inquiry is an epicycle on which the election was launched by the ridiculous, sophomoric approach of the McGablebergsuhrs.

In particular: Since when is it "pro-criminal" or negative in any other respect simply for a ruling to have some effect of supporting the rights of American citizens ?

I really shake my head at the insouciance with which the Gableman promoters -- those who honestly accept the label and those who make a show of demurring -- throw the Constitution and other laws of the land under the bus, in their rush to turn the Wisconsin Supreme Court into a rotten borough.