March 19, 2008

God help us all

The ever-alert capper sends me this link today, which leads to a purported critique of a number of Wisconsin Supreme Court cases in which Justice Louis Butler participated. Evidently Jessica McBride, the doyenne of Wisconsin conservative bloggers, has turned her hand to legal analysis (hence the title of this post).

Butler, who has been under continual attack from his rival Burnett County Judge Michael Gableman's deliberately misleading characterizations of many of those same cases, has responded by claiming that his record shows that he voted to uphold criminal convictions 75% of the time, or 97% including those cases where the court did not accept requests for review of the conviction.

I'm awful busy today but a cursory glance at McBride's "analysis" reveals the following pair of risible gems amongst the typically over-the-top rhetoric:
The 97% figure apparently includes cases that the court declined even to review.
Yes, so? There's nothing wrong with that. For example, an appeals court (which is what the Supreme Court is) may accept review of a conviction, or a lower court's affirmative ruling on appeal from that conviction, even to unanimously uphold the said conviction, because the court wishes to clarify a constitutional question raised at trial or sentencing.

Or a court may decline to review, even where it might otherwise unanimously uphold a conviction, because no such constitutional clarification is deemed necessary. So it's hardly inappropriate to include the denials of review in such a calculation.

On the other hand, Gableman put out some campaign literature basing a calculation of his reversal rate as a circuit judge on 9,000 uncontested traffic tickets, which is so ridiculous as to make even a rudimentary observer of the courts inadvertently hose down his computer monitor with expectorated liquid java.

Eschewing scare italics for scare boldface, McBride goes on to say:
Butler makes a serious error in the law by misclassifying two sexual predator cases as criminal cases (Brown and Bush). Under the law, sexual predator cases are defined as civil commitments expressly so they pass Constitutional [sic] double jeopardy protections.
First of all, the list of cases McBride provides contains three "Browns," but she doesn't tell us which one Butler's "serious error in the law" arises from.

In the other case, State v. Bush, Butler wrote for a unanimous court in favor of upholding the constitutionality of Chapter 980 provisions against the motions of the defendant, who was previously deemed a sexually violent person. Furthermore, the issues addressed by the Supreme Court turn almost entirely on the defendant's sexually violent behavior, that is, criminal behavior.* As a matter of fact, Butler specifically and explicitly rejects Bush's claim that he is no longer dangerous, despite the evidence Bush presents.

Generally speaking, Bush is about as "anti-criminal" as they come. (That's a borrowing from McBride's own parlance, where "pro-constitutional" equates to "pro-criminal.")

Secondly, while Chapter 980 does not contain criminal statutes per se, you don't get to be a sexually violent person under Chap. 980 unless you've been convicted of a sexually violent offense, a conviction which is, obviously, a criminal conviction. McBride's distinction, in this context, is bordering on the graspingly ridiculous.

Thirdly, if McBride's distinction is accepted, then Gableman can't criticize Butler's record with respect to criminal cases where they involve Chapter 980 commitments, which would pretty much gut the central point of his entire campaign. "Louis Butler, soft on civil commitments!!!1" doesn't play quite as well with the mugs.

If these two examples are any indication of McBride's acumen as a legal analyst generally, I don't see much reason to read further.

* As opposed to civil behavior — :rimshot:

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