Continued from Part I ...
Remember Jeffrey Dahmer, who committed some of the most deplorable acts that anyone is even capable of imagining? So incapable of imagining, I suspect, that if Jeffrey Dahmer hadn't committed them, and people hadn't heard about them, then probably hardly anybody would have ever imagined them themselves? That Jeffrey Dahmer, right.
Well, even Jeffrey Dahmer had a criminal defense attorney. What entitled Dahmer to a criminal defense attorney is the United States Constitution, which Burnett County conservative Republican Mike Gableman's loudest and deepest-pocketed hooters and hollerers, Wisconsin Manufacturers & Commerce, calls a "needless technicality."
Which is funny, because WMC can get away with disgorging malodorous effluent like that because the United States Constitution allows it to, because political speech is arguably the most protected speech of all. So WMC can actually deliberately vomit and expectorate on the United States Constitution whilst claiming the very protections afforded to it by the United States Constitution. How's that for dramatic irony.
Lately, Charlie Sykes and his fellow one-trick caged orangutans are making much of the nickname that Wisconsin Supreme Court Justice Louis Butler earned when he worked for the State Public Defender 25 years ago. Sykes and Co.'s pick to replace Justice Butler, the barely coherent Mike Gableman, has for all intents and purposes made it the defining aspect of his definitively sleazy campaign.
Clyde Winter will tell you more, if you don't already know.
When many people hear that an attorney defended a child molester, they say, "Oh my god, he defended a child molester? How can anybody defend a child molester?!" But just because a lawyer defended a child molester, that doesn't mean that the lawyer defended child molestation. No, the lawyer defended the child molester's constitutional rights to a fair trial and a number of other specific protections enumerated in the United States Constitution.
Lawyers, in addition to most real humans, know what it means to "defend" the accused, or even the convicted, on appeal. They understand that even child molesters have constitutional rights. But those rights have more to do than with just defending child molesters, they also have to do with prosecuting child molesters, which is what we all want.
Furthermore, people who prosecute child molesters not only know that, but they know that the best defenders of child molesters make for the most solid and effective prosecutions of child molesters. Because a good defense lawyer makes the prosecutor work hard to prove her case. And the best prosecutors want to work hard to prove their case because they want to do good work. And the best defense lawyers make the best prosecutors do their best work.
On the other hand, the last thing prosecutors want to face is a bad defense lawyer. Because the bad lawyer forces the prosecutor to work hard too, but in those instances that hard work is not good hard work, it's annoying and frustrating hard work, and, most importantly, inefficient hard work, which makes for potentially the least effective prosecutions.
Because prosecutors have a big caseload, and they want to devote their best, hardest work to all of those cases. And they can only do their best, hardest work when a good defense lawyer forces them to. And that's what prosecutors want. Prosecutors take pride in their work, just like every other self-respecting, hard working attorney.
Nobody knows that better than Dodge County District Attorney Steven G. Bauer, who actually withdrew his support for Mike Gableman. Not only that, but DA Bauer announced in print that he wouldn't even vote for Mike Gableman. Because DA Bauer knows the score, and he knows how the system works, and he was revolted by the way that Mike Gableman and his lieutenants were misrepresenting that system, and especially distorting the role that people like DA Bauer play in that system, not just Louis Butler's former role in that system, as a public defender 25 years ago.
You may find an equally good argument against the candidacy of Mike Gableman, but I bet you you can't find a better one. And DA Bauer stated it, right out there in the public press, as forcefully and as eloquently as anyone could have. And I don't care whether DA Bauer is a conservative Republican or a card carrying member of both the ACLU and PETA. That doesn't matter one bit. Because he nailed that sucker, and what he wrote is a powerful indictment of the disgraceful campaign Mike Gableman has run, and is running, in his quest to appease his monied backers and quasi-intellectual supporters.
Think about that. When Louis Butler was a public defender 25 years ago, he earned a nickname that wasn't just complimentary and in recognition of his skills as an attorney, that nickname contained a little needling joke, because Butler was — and continues to be — held in the highest esteem by his colleagues and peers.
Because if his colleagues and peers wanted to needle Louis Butler in an uncomplimentary way, they would have needled him in private, not in public, and not even in Justice Butler's presence. Trust me on this. So really, that particular nickname, containing as it does an element of good-natured needling, is a double-plus-good compliment.
And think about that when you're considering the idiotic simian jabberings of Charlie Sykes and his pals among the Wisconsin Manufacturers & Commerce crowd.
Not only are they missing the point by an astronomically wide margin, they're parading their fundamental ignorance for all to regard. But that's their job, and it's a free country, and everyone's entitled to make a living.
But that's not the reason Sykes and the rest are playing on Butler's nickname. They're weaselly, but they're not stupid. They're playing on it because they know that a lot of people don't quite get the substance, and the meaning, of how the nickname came about in the first place. So essentially what they're doing is exploiting people who may not know any better for political goals. That's right, they're exploiting people for their own selfish purposes.
And, I can't help thinking, a lot of these people who are exploiting other people will at the same time tell you that they're religious, and devout, and righteous, that they're followers of a man who dedicated — some will tell you gave — his life for propositions entirely at odds with the idea of exploiting other people. Think about that.
Louis Butler is one of the smartest and best judges in Wisconsin. Having recently plowed through dozens of Butler's written opinions, there is no doubt about that. And he's not just one of the smartest and best judges in Wisconsin, I'd argue he's one of the smartest and best in the country. Mike Gableman is ... well, unfortunately, Mike Gableman. Gableman's entire campaign has been premised on falsehoods and personal attacks intended to tear down the personal and professional integrity of a good man. It's clear he could only fail spectacularly on that account. And it's equally clear that that's the best he could come up with.
What is certain is that Mike Gableman has definitely earned one thing. He has earned your best efforts to get to the polls tomorrow, Tuesday, April 1. And the reason why Gableman has earned those efforts is not so much so you can vote against Gableman, although that certainly is a major consideration, given the contemptible conduct of his political campaign.
The main reason that the effort should be made is to vote for Louis Butler for the Wisconsin Supreme Court, so he can return and continue the public service he has been performing for the last 15 years, which is as a judge that plays it straight down the middle, meting justice where it is warranted and required by law, and not in response to any third-party monied interests or out-of-state concerns that are shamelessly trying to outright buy our courts.
The choice could not possibly be more obvious, or simple.
March 31, 2008
CNN gets it partly right
A conservative [Republican] group, Coalition for America's Families, ran its own spot criticizing Butler for writing an opinion overturning [a] rapist's conviction. The group also claimed he had "sided with criminals nearly 60 percent of the time," a statistic it has not substantiated.The missing right part is that it's deliberately fabricated bullshit.
Link to CNN report.
Help prevent a tragedy — I
I'm doing my part. And I'm not talking about this here blog, which has been pretty much devoted since December to debunking as many misrepresentations and falsehoods emanating from Burnett County conservative Republican Mike Gableman's election campaign and its supporters and professional apologists as was humanly possible.
Of course, some people are beyond all hope. An otherwise respectable local conservative blogger announced this morning he was voting for Gableman based on Gableman's "honesty." File that one under 'lost cause.'
Another said, 'I don't care if Louis Butler is a cross between Antonin Scalia and Solomon and Mike Gableman rode the short bus to Hamline Law School, I hate Jim Doyle so I'm voting Republican.' Parse that.
But I caught one yesterday, and in person. I have been teaching piano in Milwaukee two days a week for more than four years. A gentleman named James was my very first student here, and he's with me to this day. He's both highly motivated and dedicated, the perfect student. I can't recall him missing more than two or three appointments. I don't know all that much about James but I know he's a great guy, and he's becoming a pretty good pianist.
James, who I'm guessing is in his early 50s or so, had never played an instrument in his life before we met. He's long since taken to selecting his own music to read and learn on his own, often hymns that he plays at his church. (I had to encourage the hell out of him to do that, because he was nervous about performing in public, but I understand he's been a great success there.)
Lately we've been working at learning how to play out of what we call "fake books," which notate only the one-line melody of each tune, accompanied by chord symbols. They're a very basic representation of each song, and you need some theoretical and analytical skillz to realize each tune's performance. To my unending delight, James has taken a keen interest in music theory and jazz composition, two topics about which I could ramble on forever.
Whenever he starts learning a new piece from his fake book, he reads through the chord changes and marks each one with the Roman numerals musicians use to analyze the harmony. It's outstanding that he does this. James is one of my favorite piano students of all time, and I'm extremely, extremely proud of his achievements.
At the end of our weekly session yesterday, I told James to make sure he votes on Tuesday. He turned to me and said, "Oh, don't worry, I can't wait to vote against Louis Butler."
"Wait a minute, James," I said, "What?" And I am not exaggerating much when I say that James told me that Justice Butler was dedicated to shutting down all business activity in the State of Wisconsin and releasing every child molester onto the streets.
"James," I asked, knowing full well the answer, "Where in the world are you hearing this stuff?" "Charlie Sykes," came the depressingly predictable reply. "Hang on James," I said, and went to see my next waiting student to refund his money, because I was going to be a few minutes. Fortunately that young fellow travels with James, a really cool kid who I think some friends at James's church have adopted.
"Okay, James," I said, returning to my studio and closing the soundproof door, because I anticipated doing some yelling. "Tell me exactly what you've heard Charlie Sykes saying about Louis Butler. Everything."
I must say James had learned quite a bit from Charlie Sykes, and described some of the details of several of the cases Justice Butler has participated in fairly accurately. James was also disturbed by Sykes's incessant and idiotic harping at Justice Butler's ancient and complimentary nickname, earned more than two decades ago in a completely different context and capacity.
For the next 25 minutes I carefully debunked each and every one of Charlie Sykes's falsehoods. I talked about State v. Knapp. I talked about Butler's lone dissent in State v. Jensen and the likelihood of Butler's complete vindication by the most conservative members of the U.S. Supreme Court later this year.
I talked about products liability, and how Americans at least deserve to have access to the courts to try and make their cases when manufacturers market consumer goods that cause people to be injured or killed. Those same businesses shouldn't be allowed to buy the courts, and voters like James can easily stop them.
Most importantly, however, I talked about the genius of the United States Constitution and the Bill of Rights and specifically the Fourth, Fifth, and Sixth Amendments and how they afford protections to all Americans and not just to those under investigation and prosecution for crimes by the government.
I told him about Mike Gableman's campaign and, using a number of very specific examples, described to James that Gableman has been waging the most blatantly partisan and underhanded and despicable election campaign quite possibly in the history of Wisconsin.
It must have been a decent speech, because James left my studio promising to vote for Justice Butler and, almost equally importantly, against Mike Gableman. James trusts me, and he knows that I would never steer him wrong about the American system of constitutional democracy, and the role of the courts, and yes, even the role of public defenders in the adversarial legal scheme.
Because James knows I would never steer him wrong about music theory and harmony, so I certainly wouldn't bullshit him when it comes to the foundations of this ingenious and successful experiment in democracy and freedom.
Unlike Charlie Sykes, who would, and will, and does.
So, many thanks James, my man, and I'll see you next Sunday. Far from regretting the vote you cast tomorrow, you can be as justly proud of it as your touching version of Richard Rodgers' My Funny Valentine that you learned to play for your daughter when she was visiting from out of town that one time. Trust me on this, brother.
And a word for Charlie Sykes. I understand you're given to bellyaching about the state of education in this country. If you really do care for that, then you'd best stop poisoning the minds of my own most valued and decent students with your insidious, vicious lies.
Continued ...
Of course, some people are beyond all hope. An otherwise respectable local conservative blogger announced this morning he was voting for Gableman based on Gableman's "honesty." File that one under 'lost cause.'
Another said, 'I don't care if Louis Butler is a cross between Antonin Scalia and Solomon and Mike Gableman rode the short bus to Hamline Law School, I hate Jim Doyle so I'm voting Republican.' Parse that.
But I caught one yesterday, and in person. I have been teaching piano in Milwaukee two days a week for more than four years. A gentleman named James was my very first student here, and he's with me to this day. He's both highly motivated and dedicated, the perfect student. I can't recall him missing more than two or three appointments. I don't know all that much about James but I know he's a great guy, and he's becoming a pretty good pianist.
James, who I'm guessing is in his early 50s or so, had never played an instrument in his life before we met. He's long since taken to selecting his own music to read and learn on his own, often hymns that he plays at his church. (I had to encourage the hell out of him to do that, because he was nervous about performing in public, but I understand he's been a great success there.)
Lately we've been working at learning how to play out of what we call "fake books," which notate only the one-line melody of each tune, accompanied by chord symbols. They're a very basic representation of each song, and you need some theoretical and analytical skillz to realize each tune's performance. To my unending delight, James has taken a keen interest in music theory and jazz composition, two topics about which I could ramble on forever.
Whenever he starts learning a new piece from his fake book, he reads through the chord changes and marks each one with the Roman numerals musicians use to analyze the harmony. It's outstanding that he does this. James is one of my favorite piano students of all time, and I'm extremely, extremely proud of his achievements.
At the end of our weekly session yesterday, I told James to make sure he votes on Tuesday. He turned to me and said, "Oh, don't worry, I can't wait to vote against Louis Butler."
"Wait a minute, James," I said, "What?" And I am not exaggerating much when I say that James told me that Justice Butler was dedicated to shutting down all business activity in the State of Wisconsin and releasing every child molester onto the streets.
"James," I asked, knowing full well the answer, "Where in the world are you hearing this stuff?" "Charlie Sykes," came the depressingly predictable reply. "Hang on James," I said, and went to see my next waiting student to refund his money, because I was going to be a few minutes. Fortunately that young fellow travels with James, a really cool kid who I think some friends at James's church have adopted.
"Okay, James," I said, returning to my studio and closing the soundproof door, because I anticipated doing some yelling. "Tell me exactly what you've heard Charlie Sykes saying about Louis Butler. Everything."
I must say James had learned quite a bit from Charlie Sykes, and described some of the details of several of the cases Justice Butler has participated in fairly accurately. James was also disturbed by Sykes's incessant and idiotic harping at Justice Butler's ancient and complimentary nickname, earned more than two decades ago in a completely different context and capacity.
For the next 25 minutes I carefully debunked each and every one of Charlie Sykes's falsehoods. I talked about State v. Knapp. I talked about Butler's lone dissent in State v. Jensen and the likelihood of Butler's complete vindication by the most conservative members of the U.S. Supreme Court later this year.
I talked about products liability, and how Americans at least deserve to have access to the courts to try and make their cases when manufacturers market consumer goods that cause people to be injured or killed. Those same businesses shouldn't be allowed to buy the courts, and voters like James can easily stop them.
Most importantly, however, I talked about the genius of the United States Constitution and the Bill of Rights and specifically the Fourth, Fifth, and Sixth Amendments and how they afford protections to all Americans and not just to those under investigation and prosecution for crimes by the government.
I told him about Mike Gableman's campaign and, using a number of very specific examples, described to James that Gableman has been waging the most blatantly partisan and underhanded and despicable election campaign quite possibly in the history of Wisconsin.
It must have been a decent speech, because James left my studio promising to vote for Justice Butler and, almost equally importantly, against Mike Gableman. James trusts me, and he knows that I would never steer him wrong about the American system of constitutional democracy, and the role of the courts, and yes, even the role of public defenders in the adversarial legal scheme.
Because James knows I would never steer him wrong about music theory and harmony, so I certainly wouldn't bullshit him when it comes to the foundations of this ingenious and successful experiment in democracy and freedom.
Unlike Charlie Sykes, who would, and will, and does.
So, many thanks James, my man, and I'll see you next Sunday. Far from regretting the vote you cast tomorrow, you can be as justly proud of it as your touching version of Richard Rodgers' My Funny Valentine that you learned to play for your daughter when she was visiting from out of town that one time. Trust me on this, brother.
And a word for Charlie Sykes. I understand you're given to bellyaching about the state of education in this country. If you really do care for that, then you'd best stop poisoning the minds of my own most valued and decent students with your insidious, vicious lies.
Continued ...
zOMG Correction!!!1
Damn, I keep meaning to add this dude to the blogroll, but every time I think to do it, I can never come up with a shorter version of "What did [Wisconsin Whackjob State Senator] Glenn Grothman get wrong this week" that doesn't run across into two lines of text, because I'm so anal about having a clean website layout.
Finally — and I can't believe I didn't think of this before — I give you:
Grothman, WTF?
You can't have too many philosophy professors on your side.
Finally — and I can't believe I didn't think of this before — I give you:
Grothman, WTF?
You can't have too many philosophy professors on your side.
More sleazy CFAF innuendo
Stacy Forster reports on CFAF's latest robocalls.
Talk about desperate. I understand politics well enough and cheating and lying is pretty much expected, I suppose. But cheating and lying while pretending to be some righteous "family values" outfit is just despicable. How can anybody condone, let alone repeat, such trash.
CFAF's rampant scumbaggery is akin to spitting on the Constitution.
Talk about desperate. I understand politics well enough and cheating and lying is pretty much expected, I suppose. But cheating and lying while pretending to be some righteous "family values" outfit is just despicable. How can anybody condone, let alone repeat, such trash.
CFAF's rampant scumbaggery is akin to spitting on the Constitution.
CFAF "deemed" criminally inept Part 10
The following is relatively brief, since there remain few points of disagreement between CFAF and Justice Butler's lists, yet the ones that do remain are as goofy and negligently inept as any of those preceding, if not necessarily quite as reprehensible. And even in those instances, I pledge to keep my observations brief, since I've pretty much already said all that needs be said.
Furthermore, if I haven't convinced you yet of my two theses, (1) that CFAF's (and that of at least one other) entire project is a phony and disingenuous house of GOP cards erected on rotten stilts and (2) that statements from the Butler campaign further to the question of Justice Butler's recorded disposition in cases involving currently and formerly designated offenders are substantially correct (in fact, to within less than two percentage points, even if you add two cases to Butler's list of 70 that have purely to do with sentencing questions and nothing to do with either convictions or even procedural issues related to the convictions at all) then not only should I give up now, I should have given up long ago. But I started the job and I intend to finish it.
I take care to stress that last proposition in any event, just in case any potential employers and/or clients have been stopping by for a gander, in which case my little series may hopefully be the most elaborate job application and résumé ever constructed in the whole history of biological evolution on our fair and fertile planet.
Thus, as we say in this great and privileged State of the Union, Forward!
51. State v. Raye 2004AP770-CR
Justice Butler joins in its entirety another unanimous opinion reversing a drunk driving conviction. No concurring opinions are issued; in other words, Butler is in complete, unequivocal agreement with the most "conservative" members of the court.
CFAF, having disgorged nearly the entire contents of its briefcase full of trickery, assents.
At what point do we get to call CFAF and Friends, "Loophole Republicans," by the way? A long, long time ago, I reckon. Except in another ancient context, it was as a compliment. So scratch that idea.
52. State v. Wagner 2003AP1878-CR
Another terse, per curiam opinion of the court dismissing Wagner's petition for review of the court of appeals decision, which had affirmed his judgment of conviction in the circuit court for armed robbery. CFAF once again desperately seeks to remove an example of Justice Butler's ultimately "siding with law enforcement" simply because Wagner failed to make the case he had promised to make when the court originally granted review, called for written briefs, and even heard oral argument.
CFAF wants you to think that simply because the Supreme Court did not address the merits of whatever claim Wagner was making, that either his conviction was not effectively affirmed by Justice Butler and the rest of the court (which it was) or else was loosed by Justice Butler and at this moment outside lying in wait in your front yard hedge seeking to relieve you of your Karl Lagerfeld handbag at gunpoint.
Either way, CFAF can go pound sand you-know-where, and it's entirely legitimate for Justice Butler to count Wagner for the reason set forth above: The convicted defendant got nothing from any of the courts, including the one on which Butler sits, in the course of challenging his conviction. CFAF's goofball shenanigans do not even rise to the level of being a nice try. Oh, and, don't forget to check out the overwhelmingly significant -CR suffix beside the docket number.
53. State v. Moeck 2003AP000002-CR
54. State v. Anderson 2003AP3478-CR
55. State v. Reed 2003AP1781-CR
56. State v. DeLain 2003AP1253-CR
57. State v. Sykes 2003AP1234-CR
None of the currently interested parties disagree over any of the immediately preceding five cases, and a splendid family values-laden time was had by all.
Nonetheless, special attention is afforded the last of the five, arising as a contemplated action further to a certain identically-named defendant's repeated and ongoing intentional assault and battery against the Truth, the successful prosecution of which often figures prominently and occasionally causatively in the nocturnal emissions of local lefty bloggers.
58. State v. Trujillo 2003AP1463-CR
59. State v. Tucker 2003AP1276-CR
These are the two sentencing cases referenced above, in which Justice Butler wrote identical dissents. More correctly, the dissent in Tucker simply says, in essence, 'See my dissent in Trujillo.' Or is it the other way around. I don't remember. Because it doesn't matter anyway, again, as noted above.
60. State v. Stuart 2001AP1345-CR
See cases 53. through 57., inclusive. Won't you please kiss a family (values) member today (unless they're a conservative Republican, in which case, pretend you don't even know them).
Okay, that's enough for now.
Usinger's Bratwurst, meet Frank's Polish Kraut.
ttfn
To part 11 ...
Furthermore, if I haven't convinced you yet of my two theses, (1) that CFAF's (and that of at least one other) entire project is a phony and disingenuous house of GOP cards erected on rotten stilts and (2) that statements from the Butler campaign further to the question of Justice Butler's recorded disposition in cases involving currently and formerly designated offenders are substantially correct (in fact, to within less than two percentage points, even if you add two cases to Butler's list of 70 that have purely to do with sentencing questions and nothing to do with either convictions or even procedural issues related to the convictions at all) then not only should I give up now, I should have given up long ago. But I started the job and I intend to finish it.
I take care to stress that last proposition in any event, just in case any potential employers and/or clients have been stopping by for a gander, in which case my little series may hopefully be the most elaborate job application and résumé ever constructed in the whole history of biological evolution on our fair and fertile planet.
Thus, as we say in this great and privileged State of the Union, Forward!
51. State v. Raye 2004AP770-CR
Justice Butler joins in its entirety another unanimous opinion reversing a drunk driving conviction. No concurring opinions are issued; in other words, Butler is in complete, unequivocal agreement with the most "conservative" members of the court.
CFAF, having disgorged nearly the entire contents of its briefcase full of trickery, assents.
At what point do we get to call CFAF and Friends, "Loophole Republicans," by the way? A long, long time ago, I reckon. Except in another ancient context, it was as a compliment. So scratch that idea.
52. State v. Wagner 2003AP1878-CR
Another terse, per curiam opinion of the court dismissing Wagner's petition for review of the court of appeals decision, which had affirmed his judgment of conviction in the circuit court for armed robbery. CFAF once again desperately seeks to remove an example of Justice Butler's ultimately "siding with law enforcement" simply because Wagner failed to make the case he had promised to make when the court originally granted review, called for written briefs, and even heard oral argument.
CFAF wants you to think that simply because the Supreme Court did not address the merits of whatever claim Wagner was making, that either his conviction was not effectively affirmed by Justice Butler and the rest of the court (which it was) or else was loosed by Justice Butler and at this moment outside lying in wait in your front yard hedge seeking to relieve you of your Karl Lagerfeld handbag at gunpoint.
Either way, CFAF can go pound sand you-know-where, and it's entirely legitimate for Justice Butler to count Wagner for the reason set forth above: The convicted defendant got nothing from any of the courts, including the one on which Butler sits, in the course of challenging his conviction. CFAF's goofball shenanigans do not even rise to the level of being a nice try. Oh, and, don't forget to check out the overwhelmingly significant -CR suffix beside the docket number.
53. State v. Moeck 2003AP000002-CR
54. State v. Anderson 2003AP3478-CR
55. State v. Reed 2003AP1781-CR
56. State v. DeLain 2003AP1253-CR
57. State v. Sykes 2003AP1234-CR
None of the currently interested parties disagree over any of the immediately preceding five cases, and a splendid family values-laden time was had by all.
Nonetheless, special attention is afforded the last of the five, arising as a contemplated action further to a certain identically-named defendant's repeated and ongoing intentional assault and battery against the Truth, the successful prosecution of which often figures prominently and occasionally causatively in the nocturnal emissions of local lefty bloggers.
58. State v. Trujillo 2003AP1463-CR
59. State v. Tucker 2003AP1276-CR
These are the two sentencing cases referenced above, in which Justice Butler wrote identical dissents. More correctly, the dissent in Tucker simply says, in essence, 'See my dissent in Trujillo.' Or is it the other way around. I don't remember. Because it doesn't matter anyway, again, as noted above.
60. State v. Stuart 2001AP1345-CR
See cases 53. through 57., inclusive. Won't you please kiss a family (values) member today (unless they're a conservative Republican, in which case, pretend you don't even know them).
Okay, that's enough for now.
Usinger's Bratwurst, meet Frank's Polish Kraut.
ttfn
To part 11 ...
CFAF "deemed" criminally inept Part 9
Forge ahead we must, and forge ahead we shall.
41. State v. Armstrong 2002AP2979
Armstrong is another case that CFAF arbitrarily strikes from the list simply because the docket number doesn't contain the -CR suffix. This is odd, and not just for that reason. Because at the center of the case is an especially brutal rape and murder. The same brutal rape and murder, in fact, pursuant to which CFAF arguably committed defamation in another of CFAF's own television ads directed at Butler's record in deciding criminal cases!
That was the ad that was so blatantly biased, inflammatory, and arguably legally actionable that WBAY in Green Bay refused to run it until the defamatory language was removed and Madison's WISC refused to run it at all.
Yet once again, here we have CFAF, using this exact same case to wildly misrepresent Justice Butler's record and now demanding that Butler not be allowed to use precisely the same case to defend his record. The hypocrisy is breathtaking. The irony, of course, is that Butler openly acknowledges that he wrote for the majority to grant Armstrong a new trial (not to release him back onto the streets) in light of newly discovered DNA evidence that cast reasonable doubt as to whether the samples presented during the original trial belonged to Armstrong in the first place.
So Butler counts Armstrong "against" himself in reaching the percentage presented by his campaign. In the closely related honesty v. honesty calculus, Butler wins hands down and the so-called "Coalition for America's Families" would do well to take note, since the last time I checked, honesty was a fairly important consideration generally, its transmission and propagation among and between family members (and beyond) being something to be encouraged.
As for the threshold legal dispute between the majority and the dissenters, it was whether or not, as Justice Roggensack put it, a retrial using less constitutionally infirm evidence would have created a different outcome for Armstrong. Imagining herself deliberating in the place of a jury of 12, Roggensack concluded that it would not. Butler and the majority, on the other hand, considered it more prudent and careful not to do so, but rather allow a panel of citizens to make that call.
Burnett County conservative Republican Mike Gableman can rave and rant baselessly all he wants about Justice Butler's "consistent" record of placing his own personal views before those of the people of Wisconsin and its elected representatives, but he has no evidence in support of that claim, but there is considerable evidence against it, State v. Armstrong being a compelling example.
It's also another indisputable example of CFAF's miserable and dishonest little GOP games.
42. State v. Denis 2003AP384-CR
Denis is a somewhat puzzling case involving the waiver of therapist-client confidentiality among the parties arising from the repeated sexual assault of a three-year-old girl by her grandfather. Of all the 70-odd cases I have read for this series, Denis easily presents the most difficulty in terms of teasing out the pertinent facts from an extremely confusing record and applying them against the relevant law.
As a matter of fact I wouldn't at all be surprised if that is why the task fell to Justice Butler's prodigious analytical skills, and he wrote for a unanimous court to deny the defendant's challenge. CFAF agrees, probably because whatever was left of its alleged brain exploded after about the fourth paragraph of Butler's opinion, if it even got that far.
43. State v. Aufderhaar 2003AP2820-CR
Aufderhaar represents Jessica McBride's only triumph in her partisan attempts to not only attack Justice Butler's record but also his character and his professional integrity, so let's give credit where credit is due: McBride discovered a typo in the Butler campaign's list of 70 cases. [Cue momentary Purcellian fanfare.]
So thanks for that, at least, and I've corrected it. As for the court's disposition, it reversed the court of appeals affirmation of the circuit court's denial of Aufderhaar's motion to transfer his case from criminal court to juvenile court. Yes, attentive reader, that's right. Justice Roggensack's opinion for a unanimous court ordered the circuit court to dismiss the criminal charges against Aufderhaar, meaning the court's decision rendered the defendant no longer a criminal for the purposes of the law.
Yet both CFAF and McBride count this toward their labeling of Justice Butler as significantly "pro-criminal." Justice Butler, for his part, does no such thing, understanding far better than either CFAF or McBride not to engage in such risibly foolish pursuits, yet openly acknowledges that his disposition favored the defendant, along with the most "conservative" members of the court. Are either CFAF or McBride willing to tar Justice Roggensack and former Justice Wilcox "pro-criminal" pursuant to their decisions in Aufderhaar? Rhetorical question, obviously.
Elsewhere it's been suggested that Butler not include juvenile cases in order to defend himself against the falsely formulated and falsely launched attacks against his record, even where those attacks contain references to those very cases. Yet both CFAF and McBride, by applying the absurd and arbitrary methodology of only counting cases where the docket number includes the -CR suffix, have counted precisely one of those cases and furthermore one where a unanimous court explicitly rules the defendant is not a "criminal."
There are a number of possible ways that CFAF and McBride could have erred in their "analyses" of Justice Butler's record, and it seems to me that CFAF and McBride have somehow found a way to commit every single one of them.
Yet they soldier on, and others continue to defend their methodology. I flatter myself in maintaining that it's a good thing for my devoted readers — few as they may be — that all of this doesn't leave me completely speechless, as it would many, many others, I am certain.
44. State v. Ernst 2003AP1728-CR
CFAF "deems w/ Criminal." Such a designation is manifestly unfair on its face for the following reasons and further proof that whoever is reading these cases on the anti-Butler forces' side hasn't the slightest clue what they're looking at.
Ernst presents a mixed bag of very complex constitutional and procedural questions. There is no way I am going to enumerate and explain them all at this stage of the game. Suffice to say that Ernst was awarded very little by the unanimous court and what he did win had upon it placed severe restrictions by the court. On the other hand, and on balance, the State won considerably more. From the opinion:
However, in the interests of fairness, and because it is entirely unfair to accede to CFAF's laughably uninformed demands, I'll consider this a wash, and designate the same value in each of the "pro-defendant" and "pro-State" columns of my master spreadsheet. Nevertheless, I do this reluctantly, and I know that I could make a more than persuasive case that, on balance, the State won this case.
In the meantime I challenge anyone to dispute the foregoing, and am completely prepared to defend it in detail. But there's no way I'm going to do it here right now, because I'd need to get paid to do that. In the meantime let it stand as yet another example of CFAF's utterly disingenuous and downright incompetent project.
45. State v. Jerrell 2002AP3423
Jerrell is the next case CFAF strikes from the list because it isn't designated with the -CR suffix. Tough. Jerrell, despite being a juvenile case, is also another that Butler's detractors have used repeatedly to attack his record in dealing with offenders, including by Professor Esenberg, who discusses it at some length in his Federalist Society paper, "A Court Unbound?" And let's not forget that "A Court Unbound" was and is the title and theme of Wisconsin Manufacturers & Commerce's well-funded series of essentially groundless attacks against Justice Butler, which includes the profoundly anti-American assertion that the Sixth Amendment of the U.S. Constitution is a "needless technicality."
Once again, how dishonest can you get, attacking a sitting State Supreme Court Justice on his record by citing to a hand-selected series of decisions and then demanding that he not be allowed to cite to those exact same cases in defense of his record. Such a project should be included in the Oxford Dictionary of the English Language as an example of unfairness. It stays in the calculation for that reason alone.
46. State v. Bush 2003AP2306
Still another attempt by CFAF to suppress Justice Butler's right to defend himself against CFAF and others' scurrilous campaign of character assassination.
"Not classified as criminal by the court"! declares CFAF and arbitrarily tosses it from the list. And, once again, it doesn't matter. Bush deals with the circumstances of the defendant's Chapter 980 proceedings related to his status as a dangerous offender, proceedings in which Bush never would have found himself had he not committed and been convicted of a number of sexual assaults.
I repeat, because this is crucial, that CFAF and others are attacking Butler's record in dealing with criminal offenders generally. It wasn't until very recently that CFAF and Jessica McBride came up with the ruse of including only those cases bearing the -CR suffix. The ruse came about after CFAF, and immediately thereafter McBride, were challenged to defend the ridiculous and unsupportable claim that Justice Butler "sides with criminals 60% of the time." CFAF originally invented the figure out of thin air, and now they will do anything to try and justify it. But they can't. So they resort to these obvious and desperately cheap tactics.
Even more ridiculous is that both CFAF and McBride are resting this demand on a legal technicality when, simultaneously, they are proving themselves completely incapable of comprehending any of the true legal technicalities that present themselves in the cases. In fact, it's obvious to me that they haven't even read many, if not most, of these cases. And some people wonder why I think their project is a joke, and that McBride is a hack. That wonderment in and of itself is a bit of a joke.
What makes all of the foregoing even more pathetic is that Bush, which Butler himself wrote for a unanimous court, is representative of the most "anti-criminal" disposition that one could hope to find, which I have already discussed elsewhere.
Yet, the farce continues, to an unforgivably shameless degree. It's nothing short of outrageous.
47. State v. Smith 2003AP1698-CR
As if any additional evidence of CFAF's demonstrable — and, I claim, demonstrated — incompetence is required, here it is. Smith is a near-unanimous opinion, authored by Justice Roggensack, in which the defendant's two convictions were reinstated after the court of appeals had reversed the circuit court's initial judgment of conviction.
Justice Butler concurred in part and dissented in part. The upshot of Butler's dissent is that he would have ordered a new trial, after writing yet another of his thoughtful and incisive constitutional analyses. Of course the dispositional, legal effect of Butler's dissent was practically zilch, since he wrote alone. Nevertheless, Butler correctly and accurately counted Smith "against" himself.
CFAF, hilariously, counts it in Butler's "favor." Earlier I had mentioned that CFAF never disputes Butler when he counts cases "against" himself. I was about to correct myself on that account, but it's so obvious that CFAF simply committed yet another incompetent blunder, and that its mistake clearly didn't result from any attempt at actually engaging the reasoning presented in the opinions themselves.
I know it gets tricky when the circuit court does something, the court of appeals reverses, and then the Supreme Court reverses that. It tends to get hard to follow, especially even for the brilliant legal minds at CFAF, apparently.
Obviously, and given CFAF's own record in all of this, it would have jumped all over the opportunity to "agree" with Justice Butler's case designation for Smith. I understand that there are two or three "Smiths" on the list of cases, but they also contain little numbers to help you differentiate between each "Smith" and the others. CFAF was only looking for the letters, however, the letters -CR, which is independently fatuous for a number of reasons described supra and infra and indeed everywhere-a and throughout-a.
Never fear, however, I say to the good "family values" people at CFAF. I caught your laughable blunder, and the convictions remain in the correct column, where Justice Butler had put them in the first place.
No need to thank me, CFAF, but you're very welcome nonetheless.
48. State v. Anson 2003AP1444-CR
The Supreme Court, in a unanimous opinion authored by "traditionalist" hero former Justice Jon P. Wilcox, upholds the court of appeals reversal of Anson's judgment of conviction for second-degree sexual assault of a child. Butler joins Wilcox's opinion in full. No Gableman television ads appear depicting Justice Wilcox as an enthusiastic supporter of child molesters.
CFAF, in yet another failed effort to regain even a shred of credibility, let along establish any credibility in the first place, does not dispute.
49. State v. Manuel 2003AP113-CR
Justice Butler, writing for a unanimous court affirming a decision of the court of appeals, upholds Manuel's six convictions, including one for first-degree homicide. CFAF, asleep at the switch again evidently, does not dispute.
50. State v. Stenklyft 2003AP1533-CR
I have been threatening to discuss State v. Stenklyft for several weeks, and I will, as soon as I can. In fact I have nearly completed a lengthy post dealing only with this tremendously important case, which involves fundamental constitutional notions of the judicial power and its separation from the other two branches of government. Therefore I am more than prepared to defend the following claim: The Gableman campaign's own one-liner characterization of Stenklyft is a deliberately misleading farce of epic proportion.
Moreover, CFAF's taking issue with Butler's categorization of Stenklyft is, by extension to the foregoing, laughable. It stays exactly where it is on Butler's list.
Need I continue? Obviously not. But I will anyway. Opportunities for definitive smackdowns of this magnitude are few and far between, and this one is a distinct and hilarious pleasure.
ttfn
To part 10 ...
41. State v. Armstrong 2002AP2979
Armstrong is another case that CFAF arbitrarily strikes from the list simply because the docket number doesn't contain the -CR suffix. This is odd, and not just for that reason. Because at the center of the case is an especially brutal rape and murder. The same brutal rape and murder, in fact, pursuant to which CFAF arguably committed defamation in another of CFAF's own television ads directed at Butler's record in deciding criminal cases!
That was the ad that was so blatantly biased, inflammatory, and arguably legally actionable that WBAY in Green Bay refused to run it until the defamatory language was removed and Madison's WISC refused to run it at all.
Yet once again, here we have CFAF, using this exact same case to wildly misrepresent Justice Butler's record and now demanding that Butler not be allowed to use precisely the same case to defend his record. The hypocrisy is breathtaking. The irony, of course, is that Butler openly acknowledges that he wrote for the majority to grant Armstrong a new trial (not to release him back onto the streets) in light of newly discovered DNA evidence that cast reasonable doubt as to whether the samples presented during the original trial belonged to Armstrong in the first place.
So Butler counts Armstrong "against" himself in reaching the percentage presented by his campaign. In the closely related honesty v. honesty calculus, Butler wins hands down and the so-called "Coalition for America's Families" would do well to take note, since the last time I checked, honesty was a fairly important consideration generally, its transmission and propagation among and between family members (and beyond) being something to be encouraged.
As for the threshold legal dispute between the majority and the dissenters, it was whether or not, as Justice Roggensack put it, a retrial using less constitutionally infirm evidence would have created a different outcome for Armstrong. Imagining herself deliberating in the place of a jury of 12, Roggensack concluded that it would not. Butler and the majority, on the other hand, considered it more prudent and careful not to do so, but rather allow a panel of citizens to make that call.
Burnett County conservative Republican Mike Gableman can rave and rant baselessly all he wants about Justice Butler's "consistent" record of placing his own personal views before those of the people of Wisconsin and its elected representatives, but he has no evidence in support of that claim, but there is considerable evidence against it, State v. Armstrong being a compelling example.
It's also another indisputable example of CFAF's miserable and dishonest little GOP games.
42. State v. Denis 2003AP384-CR
Denis is a somewhat puzzling case involving the waiver of therapist-client confidentiality among the parties arising from the repeated sexual assault of a three-year-old girl by her grandfather. Of all the 70-odd cases I have read for this series, Denis easily presents the most difficulty in terms of teasing out the pertinent facts from an extremely confusing record and applying them against the relevant law.
As a matter of fact I wouldn't at all be surprised if that is why the task fell to Justice Butler's prodigious analytical skills, and he wrote for a unanimous court to deny the defendant's challenge. CFAF agrees, probably because whatever was left of its alleged brain exploded after about the fourth paragraph of Butler's opinion, if it even got that far.
43. State v. Aufderhaar 2003AP2820-CR
Aufderhaar represents Jessica McBride's only triumph in her partisan attempts to not only attack Justice Butler's record but also his character and his professional integrity, so let's give credit where credit is due: McBride discovered a typo in the Butler campaign's list of 70 cases. [Cue momentary Purcellian fanfare.]
So thanks for that, at least, and I've corrected it. As for the court's disposition, it reversed the court of appeals affirmation of the circuit court's denial of Aufderhaar's motion to transfer his case from criminal court to juvenile court. Yes, attentive reader, that's right. Justice Roggensack's opinion for a unanimous court ordered the circuit court to dismiss the criminal charges against Aufderhaar, meaning the court's decision rendered the defendant no longer a criminal for the purposes of the law.
Yet both CFAF and McBride count this toward their labeling of Justice Butler as significantly "pro-criminal." Justice Butler, for his part, does no such thing, understanding far better than either CFAF or McBride not to engage in such risibly foolish pursuits, yet openly acknowledges that his disposition favored the defendant, along with the most "conservative" members of the court. Are either CFAF or McBride willing to tar Justice Roggensack and former Justice Wilcox "pro-criminal" pursuant to their decisions in Aufderhaar? Rhetorical question, obviously.
Elsewhere it's been suggested that Butler not include juvenile cases in order to defend himself against the falsely formulated and falsely launched attacks against his record, even where those attacks contain references to those very cases. Yet both CFAF and McBride, by applying the absurd and arbitrary methodology of only counting cases where the docket number includes the -CR suffix, have counted precisely one of those cases and furthermore one where a unanimous court explicitly rules the defendant is not a "criminal."
There are a number of possible ways that CFAF and McBride could have erred in their "analyses" of Justice Butler's record, and it seems to me that CFAF and McBride have somehow found a way to commit every single one of them.
Yet they soldier on, and others continue to defend their methodology. I flatter myself in maintaining that it's a good thing for my devoted readers — few as they may be — that all of this doesn't leave me completely speechless, as it would many, many others, I am certain.
44. State v. Ernst 2003AP1728-CR
CFAF "deems w/ Criminal." Such a designation is manifestly unfair on its face for the following reasons and further proof that whoever is reading these cases on the anti-Butler forces' side hasn't the slightest clue what they're looking at.
Ernst presents a mixed bag of very complex constitutional and procedural questions. There is no way I am going to enumerate and explain them all at this stage of the game. Suffice to say that Ernst was awarded very little by the unanimous court and what he did win had upon it placed severe restrictions by the court. On the other hand, and on balance, the State won considerably more. From the opinion:
[W]e hold that the State may call and elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise his or her Fifth Amendment privilege against testifying. Finally, we conclude that the defendant's refusal to testify under these circumstances allows a circuit court reasonably to infer that the State has satisfied its burden of showing a knowing, intelligent, and voluntary waiver of the right to counsel.As I said, on balance, the State won in the Supreme Court and it's a safe assumption this is why the Butler campaign designated the case as it did.
However, in the interests of fairness, and because it is entirely unfair to accede to CFAF's laughably uninformed demands, I'll consider this a wash, and designate the same value in each of the "pro-defendant" and "pro-State" columns of my master spreadsheet. Nevertheless, I do this reluctantly, and I know that I could make a more than persuasive case that, on balance, the State won this case.
In the meantime I challenge anyone to dispute the foregoing, and am completely prepared to defend it in detail. But there's no way I'm going to do it here right now, because I'd need to get paid to do that. In the meantime let it stand as yet another example of CFAF's utterly disingenuous and downright incompetent project.
45. State v. Jerrell 2002AP3423
Jerrell is the next case CFAF strikes from the list because it isn't designated with the -CR suffix. Tough. Jerrell, despite being a juvenile case, is also another that Butler's detractors have used repeatedly to attack his record in dealing with offenders, including by Professor Esenberg, who discusses it at some length in his Federalist Society paper, "A Court Unbound?" And let's not forget that "A Court Unbound" was and is the title and theme of Wisconsin Manufacturers & Commerce's well-funded series of essentially groundless attacks against Justice Butler, which includes the profoundly anti-American assertion that the Sixth Amendment of the U.S. Constitution is a "needless technicality."
Once again, how dishonest can you get, attacking a sitting State Supreme Court Justice on his record by citing to a hand-selected series of decisions and then demanding that he not be allowed to cite to those exact same cases in defense of his record. Such a project should be included in the Oxford Dictionary of the English Language as an example of unfairness. It stays in the calculation for that reason alone.
46. State v. Bush 2003AP2306
Still another attempt by CFAF to suppress Justice Butler's right to defend himself against CFAF and others' scurrilous campaign of character assassination.
"Not classified as criminal by the court"! declares CFAF and arbitrarily tosses it from the list. And, once again, it doesn't matter. Bush deals with the circumstances of the defendant's Chapter 980 proceedings related to his status as a dangerous offender, proceedings in which Bush never would have found himself had he not committed and been convicted of a number of sexual assaults.
I repeat, because this is crucial, that CFAF and others are attacking Butler's record in dealing with criminal offenders generally. It wasn't until very recently that CFAF and Jessica McBride came up with the ruse of including only those cases bearing the -CR suffix. The ruse came about after CFAF, and immediately thereafter McBride, were challenged to defend the ridiculous and unsupportable claim that Justice Butler "sides with criminals 60% of the time." CFAF originally invented the figure out of thin air, and now they will do anything to try and justify it. But they can't. So they resort to these obvious and desperately cheap tactics.
Even more ridiculous is that both CFAF and McBride are resting this demand on a legal technicality when, simultaneously, they are proving themselves completely incapable of comprehending any of the true legal technicalities that present themselves in the cases. In fact, it's obvious to me that they haven't even read many, if not most, of these cases. And some people wonder why I think their project is a joke, and that McBride is a hack. That wonderment in and of itself is a bit of a joke.
What makes all of the foregoing even more pathetic is that Bush, which Butler himself wrote for a unanimous court, is representative of the most "anti-criminal" disposition that one could hope to find, which I have already discussed elsewhere.
Yet, the farce continues, to an unforgivably shameless degree. It's nothing short of outrageous.
47. State v. Smith 2003AP1698-CR
As if any additional evidence of CFAF's demonstrable — and, I claim, demonstrated — incompetence is required, here it is. Smith is a near-unanimous opinion, authored by Justice Roggensack, in which the defendant's two convictions were reinstated after the court of appeals had reversed the circuit court's initial judgment of conviction.
Justice Butler concurred in part and dissented in part. The upshot of Butler's dissent is that he would have ordered a new trial, after writing yet another of his thoughtful and incisive constitutional analyses. Of course the dispositional, legal effect of Butler's dissent was practically zilch, since he wrote alone. Nevertheless, Butler correctly and accurately counted Smith "against" himself.
CFAF, hilariously, counts it in Butler's "favor." Earlier I had mentioned that CFAF never disputes Butler when he counts cases "against" himself. I was about to correct myself on that account, but it's so obvious that CFAF simply committed yet another incompetent blunder, and that its mistake clearly didn't result from any attempt at actually engaging the reasoning presented in the opinions themselves.
I know it gets tricky when the circuit court does something, the court of appeals reverses, and then the Supreme Court reverses that. It tends to get hard to follow, especially even for the brilliant legal minds at CFAF, apparently.
Obviously, and given CFAF's own record in all of this, it would have jumped all over the opportunity to "agree" with Justice Butler's case designation for Smith. I understand that there are two or three "Smiths" on the list of cases, but they also contain little numbers to help you differentiate between each "Smith" and the others. CFAF was only looking for the letters, however, the letters -CR, which is independently fatuous for a number of reasons described supra and infra and indeed everywhere-a and throughout-a.
Never fear, however, I say to the good "family values" people at CFAF. I caught your laughable blunder, and the convictions remain in the correct column, where Justice Butler had put them in the first place.
No need to thank me, CFAF, but you're very welcome nonetheless.
48. State v. Anson 2003AP1444-CR
The Supreme Court, in a unanimous opinion authored by "traditionalist" hero former Justice Jon P. Wilcox, upholds the court of appeals reversal of Anson's judgment of conviction for second-degree sexual assault of a child. Butler joins Wilcox's opinion in full. No Gableman television ads appear depicting Justice Wilcox as an enthusiastic supporter of child molesters.
CFAF, in yet another failed effort to regain even a shred of credibility, let along establish any credibility in the first place, does not dispute.
49. State v. Manuel 2003AP113-CR
Justice Butler, writing for a unanimous court affirming a decision of the court of appeals, upholds Manuel's six convictions, including one for first-degree homicide. CFAF, asleep at the switch again evidently, does not dispute.
50. State v. Stenklyft 2003AP1533-CR
I have been threatening to discuss State v. Stenklyft for several weeks, and I will, as soon as I can. In fact I have nearly completed a lengthy post dealing only with this tremendously important case, which involves fundamental constitutional notions of the judicial power and its separation from the other two branches of government. Therefore I am more than prepared to defend the following claim: The Gableman campaign's own one-liner characterization of Stenklyft is a deliberately misleading farce of epic proportion.
Moreover, CFAF's taking issue with Butler's categorization of Stenklyft is, by extension to the foregoing, laughable. It stays exactly where it is on Butler's list.
Need I continue? Obviously not. But I will anyway. Opportunities for definitive smackdowns of this magnitude are few and far between, and this one is a distinct and hilarious pleasure.
ttfn
To part 10 ...
Subject to complete awesomeness
A major tip of the hat to my good friend out of the Denver environs, Subject to Complete Defeasance (apparently we both have the same penchant for obscure legal terms). SCD generously takes time away from his hectic schedule as a civil litigator to weigh in with some typically incisive observations on the Wisconsin Supreme Court race:
(If he happens to choose from either of the foregoing high compliments for his "vanity wall," I expect he'll select the one that includes the cleverly inserted nod to our mutual fandom for '70s prog-rock geniuses and multi-instrumentalist wonders Gentle Giant.)
However, seriously, nobody — nobody — can brief a case quite like SCD. Among the innumerable examples of SCD's amazingly concise and equally entertaining restatements of the most complex cases you can imagine is his latest, a truly superlative discussion of Hall St. v. Mattel, a U.S. Supreme Court ruling delivered last Tuesday:
Least necessary SCOTUS decision ever?
Now that, as my good friend Atty. William Tyroler might say, is masterful.
Having spent the first forty-five years of my life in Ohio, another state in which judges are chosen via head-to-head elections, I can say with some confidence that state supreme court races ain’t what they used to be. In fact, such elections were true yawners once upon a time.I often link to SPD's top-flight blog with the caveat that he's occasionally moved to side-splittingly hilarious outbursts of scatological profanity — I like to think of him as the François Rabelais or the Henry Miller of blawggers — and I warn off the faint of heart.
Then came tort “reform.” Chambers of commerce, manufacturers’ associations, insurance companies and various front groups pretending to represent concerned citizens found that, for surprisingly little money, they could purchase corporate legislation that severely restricted access to the civil justice system and severely restricted recovery for those who could obtain access. Result: the proponents of such legislation keep more of their treasure.
The fly in state tort “reform” legislation ointment was state courts. Most state constitutions (not Colorado’s, sad to say) confer a right to trial by jury in civil cases. Some state supreme courts, though by no means all, take those provisions — along with equal protection, due process and separation of powers principles — quite seriously. Result: in some states, components of tort “reform” legislation get shot down as unconstitutional.
Excising that fly from the precious, precious ointment of tort “reform” involves stacking the state supreme court with “pro-business” jurists, i.e., judges who aren’t really judges at all but rather business interest hacks. In states with head-to-head judicial elections, that essentially means buying supreme court seats.
(If he happens to choose from either of the foregoing high compliments for his "vanity wall," I expect he'll select the one that includes the cleverly inserted nod to our mutual fandom for '70s prog-rock geniuses and multi-instrumentalist wonders Gentle Giant.)
However, seriously, nobody — nobody — can brief a case quite like SCD. Among the innumerable examples of SCD's amazingly concise and equally entertaining restatements of the most complex cases you can imagine is his latest, a truly superlative discussion of Hall St. v. Mattel, a U.S. Supreme Court ruling delivered last Tuesday:
Least necessary SCOTUS decision ever?
Now that, as my good friend Atty. William Tyroler might say, is masterful.
March 30, 2008
CFAF "deemed" criminally inept: Part 8
First, don't miss the very latest installment of
DA Mike Gableman: Real Life Adventures in Crimefighting
Now, nine more cases or, "Lordy, lordy, look who's a Moran."
[Psst. For a secret message to CFAF et al, click me]
32. State v. Booker 2004AP1435-CR
Two appealed convictions for showing porn videos to three girls ages 12, 13, and 14 both upheld by a unanimous opinion from Justice Roggensack, another of the court's most "conservative" judges. The "liberal" Chief Justice concurs but Justice Butler doesn't join her opinion, he only joins Roggensack's. CFAF is forced to agree.
33. State v. Brockdorf 2004AP1519-CR
Butler dissented, and joined another dissent by Justice Crooks, along with "traditionalist" Justice Prosser, in a case involving the investigation into a Milwaukee police officer, Brockdorf, and her statements pursuant to a shoplifting arrest that allegedly got a little rough 'n' tumble.
Even more troubling is that the heist was from Kohl's. I loves me some Kohl's. I've picked up a few nice IZOD rayon dress shirts at Kohl's for like 12 bucks. What kind of a shoplifter steals from Kohl's, when all he needs to do is rummage through the 70%-off rack to find such a deal? A lazy one, that's what! He probably deserved a good whack on the side of the head.
Anyway, Butler agreed with the police officer Vanessa Brockdorf that her statements made during an investigation were compelled, and should have been suppressed for that reason. Butler went on to set down a couple of paragraphs on the subject of trust between the public and the police, and how these investigations into rough play by the cops need to be especially careful and rigorous. It's a fair point, especially in this town.
Nevertheless, because he is honest, Butler counts this case "against" himself, despite the fact that the party Butler sides with is an actual law enforcement officer, yet another example of how these rulings contain a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration.
And, because CFAF doesn't challenge a single instance of Butler siding with a defendant, it's happy to agree with this one too.
34. State v. Smith 2004AP2035-CR
35. State v. Tiepelman 2004AP914-CR
And two more. In Smith, Butler and Prosser join the Chief Justice's dissent where the majority upheld a drunk driving conviction in the face of Smith's challenge against a juror where Smith alleged a conflict because the juror worked for the Milwaukee County district attorney's office. Coincidentally, Smith addresses the very question of objective vs. subjective tests that I discussed below.
Butler counts this case "correctly" "against" himself and CFAF rushes to agree.
In Tiepelman, Justice Butler again voted with the court's most "conservative" members to reverse a criminal conviction. Naturally, CFAF agrees, but you'll never hear CFAF or Jessica McBride refer to either Justices Prosser or Wilcox as "pro-criminal" on any particular decision. Ever. Such is cheap partisan hackery.
36. State v. Fonte 2003AP2097-CR
In Fonte, Butler voted with a unanimous court (minus Justice Crooks, who did not participate) to uphold — after the court of appeals reversed — Fonte's conviction for homicide by intoxicated use of a boat. CFAF can't not agree.
37. State v. Dubose 2003AP1690-CR
38. State v. Knapp 2000AP2590-CR
Two cases that have been already discussed in great detail here and elsewhere that there is no need to rehearse at this point, suffice to say that Butler voted to reverse a conviction in Dubose, and wrote to exclude evidence in Knapp where that evidence was the product of a deliberate withholding of the constitutionally guaranteed Miranda warning.
Contrary to uninformed opinion, there was anything but clear guidance from the U.S. Supreme Court in Knapp, and the two cases that local radio howler/monkey Charlie Sykes says Butler "ignored," Butler actually spent 46 pages of the opinion addressing. Because, you know, if you write anything less than 47 pages discussing two U.S. Supreme Court decisions in excruciating detail, Sykes gets to count that as "ignoring."
I pause to reflect one more time — Why does anyone take any of these right-wing bozos seriously at all, with outright lies like that?
In any event, Butler, gentleman that he is, nevertheless counts both cases "against" himself in deference to the stupid GOP games of CFAF, and CFAF certainly isn't going to raise any question against that.
Another pause to reflect. How is it that CFAF can agree with Butler's list in so many instances, and in every single instance where CFAF disagrees with Butler's list, CFAF is dead wrong, yet CFAF's figure is nearly 40 percentage points away from the truth?
Because, dear reader, CFAF originally extracted the number from its balloon knot pucker hole, that's why, and its pathetic attempt to justify it in the meantime is a stone flat-out Opéra Bouffe of lies, screw-ups, and general boneheadedness.
39. State v. Love 2003AP2255
This is a good one. CFAF just arbitrarily removes this from the list, saying, "Not Classified Criminal By The Court." Notice the docket number beside the case name doesn't contain the holy -CR suffix. Yes, and? Again, did CFAF even care to read State v. Love? Because it is a criminal case. Last I checked, robbery at gunpoint was a crime. And ineffective assistance of counsel is often a legitimate means to attempt challenging a conviction. And postconviction motions are a regular component of criminal cases. Even CFAF could tell if they looked, because it says postconviction motion. There are no convictions in any types of cases other than criminal cases.
Hmm, let's see, what other features are there of criminal proceedings. Jury trials? Check. Evidentiary hearings? Check. Reversals of the court of appeals that remand a case back to the circuit court for a hearing on the newly discovered evidence? Check. All of which figure prominently in State v. Love. In fact, the latter is the disposition: The defendant, says Justice Butler, writing for the majority, at least deserves a hearing — but that's all, just a hearing — on this newly discovered evidence. So ordered.
Now I'll admit, I can't tell you why the case number doesn't contain the -CR suffix. Maybe it has something to do with a reference to the court of appeals "summary disposition" in the very first sentence. Is that a term of art that alerted somebody working in the clerk of courts' office to file the case a certain way? I have no idea, to be honest. Maybe somebody can fill me in.
But, here's the deal. IT DOESN'T MATTER. Butler is being attacked, baselessly, on his criminal record, and now here are these buffoons insisting that Butler cannot defend himself against their attacks by making reference to the very cases they are using to attack him.
As Larry David said to Richard Lewis, "What are you, nuts?" Or, as the kids say, "Teh stupidz! It Burns!!!11!"
Oh well, as Jessica McBride says, even if you disagree with this one case it doesn't affect the overall number. No biggie; Tee Hee!
Huh.
Well how about if you disagree — and demonstrate why, with proof — with about 100% of CFAF's idiotically incorrect classifications, how does that affect the overall number?
Lordy, lordy almighty god help us all. Wonder why I'm amazed that an actual professor of law continues to laud McBride's work, which obtained the identical result as did CFAF's? There's another reason. I've lost count of those reasons at this point.
40. State v. Moran 2003AP561-CR
Another classic CFAF boner.
CFAF disputes this one: "deems w/ Criminal." Yes, it's true, you, the people, through your elected representatives in the State legislature, are "criminals." Okay, okay, wise guy. Never mind Glenn Grothman then.
Moran is a unanimous decision authored by Justice Prosser with two concurrences by Wilcox and Roggensack dealing with a postsentencing motion to obtain DNA evidence under a due process of law theory. The unanimous court addresses Moran's motion in light of a number of statutes passed by the legislature seven years after the events leading to the defendant's conviction.
In short, the unanimous court is directly following the commands of the legislature in granting the motion. Crimefighting superhero Mike Gableman, speaking in that strange half sing-song half vacuous-GOP-talking-point-reciting voice, constantly accuses Butler of "legislating from the bench" and imposing his personal preferences on the will of the people and blah blah blah. Has Gableman ever supported any of this? Of course not. Can it be easily rebutted, with examples? Of course it can. Just read State v. Moran.
As for the result in Moran itself, certainly even a conservative Republican would appreciate having the opportunity to present new evidence that came to light not only through recent technology but through more recently passed legislation by the peoples' representatives? Or do conservative Republicans really place such absolute blind faith in the government and its police force and prosecutors? Because if they do, then conservative Republicans have sure changed their attitudes toward the government since I was just a little clump of DNA meself.
ttfn
To part 9 ...
DA Mike Gableman: Real Life Adventures in Crimefighting
Now, nine more cases or, "Lordy, lordy, look who's a Moran."
[Psst. For a secret message to CFAF et al, click me]
32. State v. Booker 2004AP1435-CR
Two appealed convictions for showing porn videos to three girls ages 12, 13, and 14 both upheld by a unanimous opinion from Justice Roggensack, another of the court's most "conservative" judges. The "liberal" Chief Justice concurs but Justice Butler doesn't join her opinion, he only joins Roggensack's. CFAF is forced to agree.
33. State v. Brockdorf 2004AP1519-CR
Butler dissented, and joined another dissent by Justice Crooks, along with "traditionalist" Justice Prosser, in a case involving the investigation into a Milwaukee police officer, Brockdorf, and her statements pursuant to a shoplifting arrest that allegedly got a little rough 'n' tumble.
Even more troubling is that the heist was from Kohl's. I loves me some Kohl's. I've picked up a few nice IZOD rayon dress shirts at Kohl's for like 12 bucks. What kind of a shoplifter steals from Kohl's, when all he needs to do is rummage through the 70%-off rack to find such a deal? A lazy one, that's what! He probably deserved a good whack on the side of the head.
Anyway, Butler agreed with the police officer Vanessa Brockdorf that her statements made during an investigation were compelled, and should have been suppressed for that reason. Butler went on to set down a couple of paragraphs on the subject of trust between the public and the police, and how these investigations into rough play by the cops need to be especially careful and rigorous. It's a fair point, especially in this town.
Nevertheless, because he is honest, Butler counts this case "against" himself, despite the fact that the party Butler sides with is an actual law enforcement officer, yet another example of how these rulings contain a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration.
And, because CFAF doesn't challenge a single instance of Butler siding with a defendant, it's happy to agree with this one too.
34. State v. Smith 2004AP2035-CR
35. State v. Tiepelman 2004AP914-CR
And two more. In Smith, Butler and Prosser join the Chief Justice's dissent where the majority upheld a drunk driving conviction in the face of Smith's challenge against a juror where Smith alleged a conflict because the juror worked for the Milwaukee County district attorney's office. Coincidentally, Smith addresses the very question of objective vs. subjective tests that I discussed below.
Butler counts this case "correctly" "against" himself and CFAF rushes to agree.
In Tiepelman, Justice Butler again voted with the court's most "conservative" members to reverse a criminal conviction. Naturally, CFAF agrees, but you'll never hear CFAF or Jessica McBride refer to either Justices Prosser or Wilcox as "pro-criminal" on any particular decision. Ever. Such is cheap partisan hackery.
36. State v. Fonte 2003AP2097-CR
In Fonte, Butler voted with a unanimous court (minus Justice Crooks, who did not participate) to uphold — after the court of appeals reversed — Fonte's conviction for homicide by intoxicated use of a boat. CFAF can't not agree.
37. State v. Dubose 2003AP1690-CR
38. State v. Knapp 2000AP2590-CR
Two cases that have been already discussed in great detail here and elsewhere that there is no need to rehearse at this point, suffice to say that Butler voted to reverse a conviction in Dubose, and wrote to exclude evidence in Knapp where that evidence was the product of a deliberate withholding of the constitutionally guaranteed Miranda warning.
Contrary to uninformed opinion, there was anything but clear guidance from the U.S. Supreme Court in Knapp, and the two cases that local radio howler/monkey Charlie Sykes says Butler "ignored," Butler actually spent 46 pages of the opinion addressing. Because, you know, if you write anything less than 47 pages discussing two U.S. Supreme Court decisions in excruciating detail, Sykes gets to count that as "ignoring."
I pause to reflect one more time — Why does anyone take any of these right-wing bozos seriously at all, with outright lies like that?
In any event, Butler, gentleman that he is, nevertheless counts both cases "against" himself in deference to the stupid GOP games of CFAF, and CFAF certainly isn't going to raise any question against that.
Another pause to reflect. How is it that CFAF can agree with Butler's list in so many instances, and in every single instance where CFAF disagrees with Butler's list, CFAF is dead wrong, yet CFAF's figure is nearly 40 percentage points away from the truth?
Because, dear reader, CFAF originally extracted the number from its balloon knot pucker hole, that's why, and its pathetic attempt to justify it in the meantime is a stone flat-out Opéra Bouffe of lies, screw-ups, and general boneheadedness.
39. State v. Love 2003AP2255
This is a good one. CFAF just arbitrarily removes this from the list, saying, "Not Classified Criminal By The Court." Notice the docket number beside the case name doesn't contain the holy -CR suffix. Yes, and? Again, did CFAF even care to read State v. Love? Because it is a criminal case. Last I checked, robbery at gunpoint was a crime. And ineffective assistance of counsel is often a legitimate means to attempt challenging a conviction. And postconviction motions are a regular component of criminal cases. Even CFAF could tell if they looked, because it says postconviction motion. There are no convictions in any types of cases other than criminal cases.
Hmm, let's see, what other features are there of criminal proceedings. Jury trials? Check. Evidentiary hearings? Check. Reversals of the court of appeals that remand a case back to the circuit court for a hearing on the newly discovered evidence? Check. All of which figure prominently in State v. Love. In fact, the latter is the disposition: The defendant, says Justice Butler, writing for the majority, at least deserves a hearing — but that's all, just a hearing — on this newly discovered evidence. So ordered.
Now I'll admit, I can't tell you why the case number doesn't contain the -CR suffix. Maybe it has something to do with a reference to the court of appeals "summary disposition" in the very first sentence. Is that a term of art that alerted somebody working in the clerk of courts' office to file the case a certain way? I have no idea, to be honest. Maybe somebody can fill me in.
But, here's the deal. IT DOESN'T MATTER. Butler is being attacked, baselessly, on his criminal record, and now here are these buffoons insisting that Butler cannot defend himself against their attacks by making reference to the very cases they are using to attack him.
As Larry David said to Richard Lewis, "What are you, nuts?" Or, as the kids say, "Teh stupidz! It Burns!!!11!"
Oh well, as Jessica McBride says, even if you disagree with this one case it doesn't affect the overall number. No biggie; Tee Hee!
Huh.
Well how about if you disagree — and demonstrate why, with proof — with about 100% of CFAF's idiotically incorrect classifications, how does that affect the overall number?
Lordy, lordy almighty god help us all. Wonder why I'm amazed that an actual professor of law continues to laud McBride's work, which obtained the identical result as did CFAF's? There's another reason. I've lost count of those reasons at this point.
40. State v. Moran 2003AP561-CR
Another classic CFAF boner.
CFAF disputes this one: "deems w/ Criminal." Yes, it's true, you, the people, through your elected representatives in the State legislature, are "criminals." Okay, okay, wise guy. Never mind Glenn Grothman then.
Moran is a unanimous decision authored by Justice Prosser with two concurrences by Wilcox and Roggensack dealing with a postsentencing motion to obtain DNA evidence under a due process of law theory. The unanimous court addresses Moran's motion in light of a number of statutes passed by the legislature seven years after the events leading to the defendant's conviction.
In short, the unanimous court is directly following the commands of the legislature in granting the motion. Crimefighting superhero Mike Gableman, speaking in that strange half sing-song half vacuous-GOP-talking-point-reciting voice, constantly accuses Butler of "legislating from the bench" and imposing his personal preferences on the will of the people and blah blah blah. Has Gableman ever supported any of this? Of course not. Can it be easily rebutted, with examples? Of course it can. Just read State v. Moran.
As for the result in Moran itself, certainly even a conservative Republican would appreciate having the opportunity to present new evidence that came to light not only through recent technology but through more recently passed legislation by the peoples' representatives? Or do conservative Republicans really place such absolute blind faith in the government and its police force and prosecutors? Because if they do, then conservative Republicans have sure changed their attitudes toward the government since I was just a little clump of DNA meself.
ttfn
To part 9 ...
Journal-Sentinel finally endorses Butler
Worth a read.
But frankly, being "tough on crime" isn't especially relevant to the job of a Supreme Court justice. More important is judgment and experience.Precisely. Especially when you're not as tough as you say.
Even a hayseed like me
Maybe Burnett County conservative Republican Mike Gableman wouldn't want to answer questions about his salad days as a prosecutor in Ashland County after all.
Because according to the Milwaukee Journal-Sentinel's Dan Bice, crimefighting superhero Gableman sat on a homicide case for two years, apparently because he didn't know what to do with it.
The initial investigation should have given him at least some idea what to do with it. The criminal complaint says John Wirner shot his wife in the back with a 20-ga. shotgun as she was running away from him down a boardwalk at their home. Wirner claimed he shot her in the back by accident, shortly after he returned from blowing away a squirrel and a woodpecker from his bird feeder in February, 1999.
Wirner, it seems, had also been involved in an extra-marital affair for a number of years immediately prior to the shotgun blasts.
Except investigators determined that Wirner's accident tale didn't add up, and it couldn't have happened the way he described it. Wirner wasn't charged until 2002, after Gableman had accepted another job and a 20K salary cut. Maybe that's how much it was worth to escape the pressures of being a crimefighting superhero.
Gableman's successor, on the other hand, jumped on the file and charged Wirner with first-degree homicide, but not until October, 2002. That same month, Wirner died, apparently by his own hand.
But Gableman tells us practically constantly that he was all about bringing criminals to justice. Looks like he could have put the long arm on John R. Wirner, but didn't. Wirner had to do it himself.
Could be a hectic couple of days for Gableman, starting now.
Cory Liebmann has more, and addresses the credibility of Gableman's incessant self-promotion as having had "worked shoulder to shoulder with victims of crime":
Gableman murder case went nowhere.
Because according to the Milwaukee Journal-Sentinel's Dan Bice, crimefighting superhero Gableman sat on a homicide case for two years, apparently because he didn't know what to do with it.
The initial investigation should have given him at least some idea what to do with it. The criminal complaint says John Wirner shot his wife in the back with a 20-ga. shotgun as she was running away from him down a boardwalk at their home. Wirner claimed he shot her in the back by accident, shortly after he returned from blowing away a squirrel and a woodpecker from his bird feeder in February, 1999.
Wirner, it seems, had also been involved in an extra-marital affair for a number of years immediately prior to the shotgun blasts.
Except investigators determined that Wirner's accident tale didn't add up, and it couldn't have happened the way he described it. Wirner wasn't charged until 2002, after Gableman had accepted another job and a 20K salary cut. Maybe that's how much it was worth to escape the pressures of being a crimefighting superhero.
Gableman's successor, on the other hand, jumped on the file and charged Wirner with first-degree homicide, but not until October, 2002. That same month, Wirner died, apparently by his own hand.
But Gableman tells us practically constantly that he was all about bringing criminals to justice. Looks like he could have put the long arm on John R. Wirner, but didn't. Wirner had to do it himself.
Could be a hectic couple of days for Gableman, starting now.
Cory Liebmann has more, and addresses the credibility of Gableman's incessant self-promotion as having had "worked shoulder to shoulder with victims of crime":
Gableman murder case went nowhere.
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.
ttfn
To part 8 ...
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.
ttfn
To part 8 ...
CFAF "deemed" criminally inept: Part 6
Herewith, our next top ten. It's long but, I trust, entertaining as all hell. Or at least as entertaining as it is to me. Enjoy.
21. State v. Brown 2005AP584-CR
Easy one. Brown was returned unceremoniously to the jug after violating the terms of his extended supervision. From the circuit court to the court of appeals to a unanimous Supreme Court to CFAF, all agreed: Justice Louis Butler laid a smackdown on an eeeevil criminal. Defendant Brown, J.C., dissenting.
22. State v. Lord 2005AP1485-CR
Aww, things were going so well there for a moment and now CFAF is back to its old, disputatious self. Butler counts this in his favor, law enforcement-wise. CFAF? Well, CFAF is on crack, not to put too fine a point on it. How in the tarnation can CFAF "deems w/ Criminal" a unanimous opinion of the Supreme Court granting an appeal by the STATE OF WISCONSIN of a court of appeals decision that the State of Wisconsin had WON?!
Yes, the defendant had also petitioned for review and the Supreme Court had granted it, but check it: "The State's concession that the legal principle adopted by the court of appeals is an incorrect statement of law effectively eliminates the issue upon which the petition for review was granted."
That means that, in light of the State's motion to reverse the court of appeals decision after conceding to the defendant that the court of appeals decision was inconsistent with controlling U.S. Supreme Court caselaw, the Wisconsin Supreme Court here is essentially saying, 'State? Hello? Why didn't you figure that out before we granted the defendant's petition for review? Because if you had, we never would have granted the defendant's petition in the first place.'
So if State v. Lord is "pro-criminal" in any sense at all, it's the State — the executive branch, and not even the judicial branch, let alone Justice Butler — that is the "pro-criminal" party here because it was the State that agreed with the defendant's argument that the lower court's decision was inconsistent with the U.S. Supreme Court. This case should not have even got to the Wisconsin Supreme Court, in short.
The Wisconsin Supreme Court gave the defendant NOTHING. And now CFAF expects to count this case against Justice Butler's record in criminal cases. Somebody needs their head examined here. I won't say who. I won't even give you their initials. But I will say that part of their name is FAMILIES. And they should go home and be with theirs and stop lying about a sitting Justice of the Wisconsin Supreme Court's reputation.
Did CFAF actually even read any of these cases? It appears that they didn't.
23. State v. Kasmarek 2004AP3285-CR
Another perfect example of CFAF's deliberate attempt to massage the numbers in order to misrepresent Justice Butler's record.
"This was a petition for review and not included by CFAF." lmfao! What in the Sam Hill does CFAF think a petition for review is? It's a request by a defendant to have the Supreme Court review a circuit court's judgment of conviction against the defendant! And in Kasmarek, as in many other cases, it's a petition for review of the court of appeals affirmation of the circuit court's judgment of conviction.
What happened in Kasmarek is this. Kasmarek was convicted in the circuit court. He then asked the court of appeals to review his conviction. The court of appeals told him to go pound sand. Then Kasmarek asked the Supreme Court to review the court of appeals decision, based on certain specific questions of law. The Supreme Court said, "Hmm, this could be interesting. Let's let Kasmarek try and make his case." Lawyers for both sides prepared their written briefs and submitted them to the Supreme Court. The Supreme Court even set aside time on its schedule for oral argument, and oral argument was heard. In short, a hell of a lot of court and other resources were expended.
The Supreme Court then returned to its chambers and reviewed the entire record as it then stood. Having done so, the Supreme Court then determined: 'What the ?! This character not only didn't make a convincing argument on those certain specific questions of law we granted this review to hear, he didn't even ADDRESS them.'
Finally, in State v. Kasmarek 2004AP3285-CR the Supreme Court, in another per curiam opinion, declared, 'Hey, Dude? Don't go away mad, just go away.'
The effect of that? CONVICTION AFFIRMED AND UPHELD.
Yet CFAF, to coin a phrase "summarily dismisses" Kasmarek in order to deliberately manipulate the numbers in a deceitful ploy to try and support its initial lie that Butler "sides with criminals 60% of the time."
I'm getting near to running out of adjectives to describe CFAF's laughable project already, but here's a new one: Woeful. As in woefully inept. And, ultimately, as I have been saying all along, deliberately misleading.
An interim recap is in order at this point. CFAF lied. CFAF got called on its lie. CFAF is desperately attempting to support its lie by any means necessary. And has failed miserably. And this series of posts is demonstrating how CFAF has failed miserably at every step of the way. Also, recall, it was CFAF in the first place that made the ridiculous decision to try and place a "percentage" to Justice Butler's record.
And lately, in a truly astonishing development, a professor of law at Marquette University has taken it upon himself to try and justify Jessica McBride, who is obviously relying on precisely the same disingenuous method as is CFAF. Prof. Esenberg warns me to stop conflating CFAF and Jessica McBride. I can't help but conflate them, because McBride has reached precisely the same figure as CFAF (58%), and Jessica McBride has systematically removed from the Butler campaign's list of cases precisely the same cases that CFAF removed to get to that same figure. That is a fact.
Let me remind Prof. Esenberg that I'm under no obligation to show him CFAF's version of the Butler list, as he's demanded several times. He'll just have to trust me, as a fellow sworn member of the Wisconsin bar, that I have it right here on my desk beside my well-worn pocket copy of the United States Constitution.
And my Roget's, through which I'm searching for more synonyms for "comical."
24. State v. Campbell 2004AP803-CR
I needn't say anything further about Campbell. See this post, and do try and contain your mirth. Thank you in advance.
25. State v. Kelty 2003AP3055-CR
Kelty attempted to withdraw her guilty pleas to two counts of reckless injury, for which she was convicted by the circuit court. The circuit court denied her motion. Kelty went to the court of appeals, which reversed the circuit court. The State of Wisconsin, that is, law enforcement, desiring to reinstate Kelty's convictions, appealed to the Supreme Court. The Supreme Court, in a UNANIMOUS opinion obviously involving not only Justice Butler but its most "conservative" members, reversed the court of appeals and reinstated both Kelty's guilty pleas and her two convictions.
Justice Butler, as is often his wont, took it upon himself to concur and write separately to thoughtfully and cogently discuss a technical point of substantive and procedural law that arose as a corollary to this case's central issue: the two convictions, which Butler voted to UPHOLD.
Kelty's initial motion to withdraw her guilty plea was filed after her conviction and indeed, after her sentencing. Prof. Esenberg has suggested that Justice Butler should only be able to use those cases that directly challenge the convictions themselves to defend himself against the scurrilous attacks of his detractors. Kelty would be one of those cases that Esenberg's suggestion would exclude.
As I have said repeatedly here and at Prof. Esenberg's own blog, the conviction is the central element of every criminal case. But in this case, Kelty was using her guilty pleas to attack the convictions. In other cases, convicted defendants use questions of, for example, admissibility of evidence at trial to attack the conviction. The conviction is the target, it is the goal. I can't think of a better case to illustrate this obvious fact of criminal law than State v. Kelty. And this is precisely why Justice Butler has used convictions as the denominator. Because they are, undeniably, the denominator.
Prof. Esenberg, on the other hand, actually defers to a partisan hack's thus far unrevealed methodology. It's absolutely astounding.
Having said all that, for its part, CFAF does not dispute Kelty.
26. State v. Young 2003AP2968-CR
Yet another clear demonstration of CFAF's lies. I had discussed this case earlier, in Part 2 of this series. It's worth repeating here, just in case anyone missed it.
27. State v. Brown 2003AP2662-CR
CFAF disputes Butler's claim that Brown did not reverse the defendant's three convictions.
If one accepts that Brown contributes to Justice Butler's "pro-criminality," as CFAF so "deems," then likewise does it to Justices Prosser and Wilcox, precisely the judges that Mike Gableman would like to compare himself with, in "stark contrast" to Justice Butler. Sorry, CFAF, but you can't have it every which way but truthful.
All the court allowed was that Brown must receive a hearing on his motion to withdraw his guilty pleas. That's it. The Brown court, including Butler, did not grant Brown's motion. In fact the court did not even address the merits of Brown's motion. It simply addressed the standard by which the circuit court should decide whether to merely grant a hearing, at which Brown could try to make his case why his pleas should be withdrawn. On this narrow question, supported by a lengthy constitutional and precedential analysis, the Supreme Court determined that the circuit court had erred in denying Brown a hearing.
Once again, as in a number of the other cases where Butler joined the most conservative members of the court, Brown grants the defendant nothing more than a fair hearing. If he fails to make his case convincingly, and/or the State persuades the circuit court that Brown's motion has insufficient merit, then Brown is dead in the water on this question. But all those further determinations are made by courts upon which Justice Butler does not sit. And obviously, in the meantime, as far as the Supreme Court is concerned, Brown's three convictions remain 100% intact.
Pro-criminal? Spare me. Pro-constitutional right to a fair hearing of grievances, a right enjoyed by every single American.
Justice Butler is absolutely correct to categorize this case as he did, and CFAF is fatuous to attempt otherwise.
28. State v. Bonds 2005AP948-CR
In an extremely close call (Bonds contains three separate opinions) the Supreme Court reverses the court of appeals, over an amendment to the original criminal complaint against Bonds executed after Bonds had been convicted. The amendment to the criminal complaint concerned Bonds's designation as a habitual offender. A very interesting case indeed, especially for criminal law wonks, although Butler did not write any of the opinions, but rather joined both the majority and the Chief Justice's concurring opinion.
For our purposes, however, there is no controversy, Butler's list places Brown as "pro-defendant" and CFAF agrees.
And I'll say it again. Of course CFAF agrees. They agree with every single case that Butler designates as such. CFAF only disputes, ignores, or otherwise misrepresents only those cases it needs to dispute to duplicitously lie in support of its original bogus claim. As I have demonstrated time and time again. And will continue to demonstrate.
29. State v. Walker 2004AP2820-CR
In yet another of the seemingly endless parade of CFAF misrepresentations, CFAF "deems w/ Criminal" a sentencing case, which doesn't even deal with Walker's conviction, save for mentioning it twice in the course of the standard reiteration of the history of Walker's entire case. Needless to say, Walker's conviction remained 100% intact, exactly as Justice Butler has claimed. And, once again, Butler joined a UNANIMOUS court in leaving that conviction intact, but simply directing the circuit court to straighten out the details of Walker's sentencing.
Yet supporters of Mike Gableman continue to insist Justice Butler is lying. Disgraceful.
30. State v. Roberson 2003AP2802-CR
Butler, for the majority, writes to affirm the court of appeals decision which itself affirms Roberson's judgment of conviction. The Chief Justice dissents, joined by Justice Bradley. Why is this significant? Because Butler's critics will tell you that Butler is the most "liberal" member of the court. But in Roberson, Butler didn't just join the court's most "conservative" members as is often the case, and as the careful reader may have noted, but the most conservative members joined Butler. In full.
A hapless CFAF agrees, a fact that itself seems almost remarkable at this point.
Thank you all for reading, and please stay tuned for the next installment in the continuing saga of laughable ineptness and outright character assassination attempted against a sitting Justice of the Wisconsin Supreme Court, an experienced jurist of the highest intellectual quality and integrity and complete devotion to our sacrosanct constitutional principles who this great State should be proud to have serving on its highest court. And it should, without question, vote to keep him there on Tuesday.
The fact that his opponent has repeatedly and convincingly demonstrated his obvious unsuitability to replace Justice Butler is just gravy.
And please don't forget that the aforementioned and the forthcoming outrages are being perpetrated by a conservative Republican "family values" outfit and their little supporters and enablers, now caught with its baggy clown pants down and its lying ass exposed.
ttfn
To part 7 ...
21. State v. Brown 2005AP584-CR
Easy one. Brown was returned unceremoniously to the jug after violating the terms of his extended supervision. From the circuit court to the court of appeals to a unanimous Supreme Court to CFAF, all agreed: Justice Louis Butler laid a smackdown on an eeeevil criminal. Defendant Brown, J.C., dissenting.
22. State v. Lord 2005AP1485-CR
Aww, things were going so well there for a moment and now CFAF is back to its old, disputatious self. Butler counts this in his favor, law enforcement-wise. CFAF? Well, CFAF is on crack, not to put too fine a point on it. How in the tarnation can CFAF "deems w/ Criminal" a unanimous opinion of the Supreme Court granting an appeal by the STATE OF WISCONSIN of a court of appeals decision that the State of Wisconsin had WON?!
Yes, the defendant had also petitioned for review and the Supreme Court had granted it, but check it: "The State's concession that the legal principle adopted by the court of appeals is an incorrect statement of law effectively eliminates the issue upon which the petition for review was granted."
That means that, in light of the State's motion to reverse the court of appeals decision after conceding to the defendant that the court of appeals decision was inconsistent with controlling U.S. Supreme Court caselaw, the Wisconsin Supreme Court here is essentially saying, 'State? Hello? Why didn't you figure that out before we granted the defendant's petition for review? Because if you had, we never would have granted the defendant's petition in the first place.'
So if State v. Lord is "pro-criminal" in any sense at all, it's the State — the executive branch, and not even the judicial branch, let alone Justice Butler — that is the "pro-criminal" party here because it was the State that agreed with the defendant's argument that the lower court's decision was inconsistent with the U.S. Supreme Court. This case should not have even got to the Wisconsin Supreme Court, in short.
The Wisconsin Supreme Court gave the defendant NOTHING. And now CFAF expects to count this case against Justice Butler's record in criminal cases. Somebody needs their head examined here. I won't say who. I won't even give you their initials. But I will say that part of their name is FAMILIES. And they should go home and be with theirs and stop lying about a sitting Justice of the Wisconsin Supreme Court's reputation.
Did CFAF actually even read any of these cases? It appears that they didn't.
23. State v. Kasmarek 2004AP3285-CR
Another perfect example of CFAF's deliberate attempt to massage the numbers in order to misrepresent Justice Butler's record.
"This was a petition for review and not included by CFAF." lmfao! What in the Sam Hill does CFAF think a petition for review is? It's a request by a defendant to have the Supreme Court review a circuit court's judgment of conviction against the defendant! And in Kasmarek, as in many other cases, it's a petition for review of the court of appeals affirmation of the circuit court's judgment of conviction.
What happened in Kasmarek is this. Kasmarek was convicted in the circuit court. He then asked the court of appeals to review his conviction. The court of appeals told him to go pound sand. Then Kasmarek asked the Supreme Court to review the court of appeals decision, based on certain specific questions of law. The Supreme Court said, "Hmm, this could be interesting. Let's let Kasmarek try and make his case." Lawyers for both sides prepared their written briefs and submitted them to the Supreme Court. The Supreme Court even set aside time on its schedule for oral argument, and oral argument was heard. In short, a hell of a lot of court and other resources were expended.
The Supreme Court then returned to its chambers and reviewed the entire record as it then stood. Having done so, the Supreme Court then determined: 'What the ?! This character not only didn't make a convincing argument on those certain specific questions of law we granted this review to hear, he didn't even ADDRESS them.'
Finally, in State v. Kasmarek 2004AP3285-CR the Supreme Court, in another per curiam opinion, declared, 'Hey, Dude? Don't go away mad, just go away.'
The effect of that? CONVICTION AFFIRMED AND UPHELD.
Yet CFAF, to coin a phrase "summarily dismisses" Kasmarek in order to deliberately manipulate the numbers in a deceitful ploy to try and support its initial lie that Butler "sides with criminals 60% of the time."
I'm getting near to running out of adjectives to describe CFAF's laughable project already, but here's a new one: Woeful. As in woefully inept. And, ultimately, as I have been saying all along, deliberately misleading.
An interim recap is in order at this point. CFAF lied. CFAF got called on its lie. CFAF is desperately attempting to support its lie by any means necessary. And has failed miserably. And this series of posts is demonstrating how CFAF has failed miserably at every step of the way. Also, recall, it was CFAF in the first place that made the ridiculous decision to try and place a "percentage" to Justice Butler's record.
And lately, in a truly astonishing development, a professor of law at Marquette University has taken it upon himself to try and justify Jessica McBride, who is obviously relying on precisely the same disingenuous method as is CFAF. Prof. Esenberg warns me to stop conflating CFAF and Jessica McBride. I can't help but conflate them, because McBride has reached precisely the same figure as CFAF (58%), and Jessica McBride has systematically removed from the Butler campaign's list of cases precisely the same cases that CFAF removed to get to that same figure. That is a fact.
Let me remind Prof. Esenberg that I'm under no obligation to show him CFAF's version of the Butler list, as he's demanded several times. He'll just have to trust me, as a fellow sworn member of the Wisconsin bar, that I have it right here on my desk beside my well-worn pocket copy of the United States Constitution.
And my Roget's, through which I'm searching for more synonyms for "comical."
24. State v. Campbell 2004AP803-CR
I needn't say anything further about Campbell. See this post, and do try and contain your mirth. Thank you in advance.
25. State v. Kelty 2003AP3055-CR
Kelty attempted to withdraw her guilty pleas to two counts of reckless injury, for which she was convicted by the circuit court. The circuit court denied her motion. Kelty went to the court of appeals, which reversed the circuit court. The State of Wisconsin, that is, law enforcement, desiring to reinstate Kelty's convictions, appealed to the Supreme Court. The Supreme Court, in a UNANIMOUS opinion obviously involving not only Justice Butler but its most "conservative" members, reversed the court of appeals and reinstated both Kelty's guilty pleas and her two convictions.
Justice Butler, as is often his wont, took it upon himself to concur and write separately to thoughtfully and cogently discuss a technical point of substantive and procedural law that arose as a corollary to this case's central issue: the two convictions, which Butler voted to UPHOLD.
Kelty's initial motion to withdraw her guilty plea was filed after her conviction and indeed, after her sentencing. Prof. Esenberg has suggested that Justice Butler should only be able to use those cases that directly challenge the convictions themselves to defend himself against the scurrilous attacks of his detractors. Kelty would be one of those cases that Esenberg's suggestion would exclude.
As I have said repeatedly here and at Prof. Esenberg's own blog, the conviction is the central element of every criminal case. But in this case, Kelty was using her guilty pleas to attack the convictions. In other cases, convicted defendants use questions of, for example, admissibility of evidence at trial to attack the conviction. The conviction is the target, it is the goal. I can't think of a better case to illustrate this obvious fact of criminal law than State v. Kelty. And this is precisely why Justice Butler has used convictions as the denominator. Because they are, undeniably, the denominator.
Prof. Esenberg, on the other hand, actually defers to a partisan hack's thus far unrevealed methodology. It's absolutely astounding.
Having said all that, for its part, CFAF does not dispute Kelty.
26. State v. Young 2003AP2968-CR
Yet another clear demonstration of CFAF's lies. I had discussed this case earlier, in Part 2 of this series. It's worth repeating here, just in case anyone missed it.
Another reason why CFAF may have removed the [conviction/count] numbers [from its "analysis'] is that they knew what they meant, but they removed them so they could scam, scam, and scam some more. Because, as I mentioned in Part 1 of this series, where a case is numbered, for example, (2:1), that means there was three convictions and Butler voted to affirm two of the convictions but reverse one.Enough said. Yet there is more to be said. Much more.
And then Butler could go on, in his typically incisive and rigorously logical way, to break down each of the four statutory elements of the conviction he wanted to reverse and argue why the conviction couldn't stand, not because the United States Constitution protects "criminals," but because it protects ALL AMERICANS and if other Americans were subjected to the rule announced by the majority, then probably even CONSERVATIVE REPUBLICAN FAMILY VALUES PEOPLE might be troubled..
Not only that, but of those three convictions, maybe the two Butler affirmed were the two serious ones, like maybe a dope possession and a resisting arrest, but the one he wanted to reverse was a relatively piddling obstruction charge, and maybe even that charge was so slight and questionable, it was crying out for a closer look.
And, even then, Butler might look at those four statutory elements and agree that the State proved the first two no problem, but faltered on the third, and explain in great detail why, with constant references, naturally, to the requirements of the Constitution.
You could say, Justice Butler might do that. But did he actually do that? And the answer is, yes, that's exactly what he did, in a case called State v. Young, in which Butler even poses the following question for the ages: "Would wearing a cheesehead provide a sufficient basis for a lawful stop in another state?"
And what, pray tell, did CFAF do with State v. Young? As should be painfully obvious by now, CFAF "deemed w/ Criminal." 100% of Young, "deemed w/ Criminal." That, my dear friends, is yet another example of CFAF's scammy scamming scammery. And there are more to come.
Please don't forget also that Mike Gableman, who apparently is a "candidate" to replace Justice Butler, was relying on that sort of garbage when he started — and continued — to repeat CFAF's fatuous and misleading data mining.
27. State v. Brown 2003AP2662-CR
CFAF disputes Butler's claim that Brown did not reverse the defendant's three convictions.
If one accepts that Brown contributes to Justice Butler's "pro-criminality," as CFAF so "deems," then likewise does it to Justices Prosser and Wilcox, precisely the judges that Mike Gableman would like to compare himself with, in "stark contrast" to Justice Butler. Sorry, CFAF, but you can't have it every which way but truthful.
All the court allowed was that Brown must receive a hearing on his motion to withdraw his guilty pleas. That's it. The Brown court, including Butler, did not grant Brown's motion. In fact the court did not even address the merits of Brown's motion. It simply addressed the standard by which the circuit court should decide whether to merely grant a hearing, at which Brown could try to make his case why his pleas should be withdrawn. On this narrow question, supported by a lengthy constitutional and precedential analysis, the Supreme Court determined that the circuit court had erred in denying Brown a hearing.
Once again, as in a number of the other cases where Butler joined the most conservative members of the court, Brown grants the defendant nothing more than a fair hearing. If he fails to make his case convincingly, and/or the State persuades the circuit court that Brown's motion has insufficient merit, then Brown is dead in the water on this question. But all those further determinations are made by courts upon which Justice Butler does not sit. And obviously, in the meantime, as far as the Supreme Court is concerned, Brown's three convictions remain 100% intact.
Pro-criminal? Spare me. Pro-constitutional right to a fair hearing of grievances, a right enjoyed by every single American.
Justice Butler is absolutely correct to categorize this case as he did, and CFAF is fatuous to attempt otherwise.
28. State v. Bonds 2005AP948-CR
In an extremely close call (Bonds contains three separate opinions) the Supreme Court reverses the court of appeals, over an amendment to the original criminal complaint against Bonds executed after Bonds had been convicted. The amendment to the criminal complaint concerned Bonds's designation as a habitual offender. A very interesting case indeed, especially for criminal law wonks, although Butler did not write any of the opinions, but rather joined both the majority and the Chief Justice's concurring opinion.
For our purposes, however, there is no controversy, Butler's list places Brown as "pro-defendant" and CFAF agrees.
And I'll say it again. Of course CFAF agrees. They agree with every single case that Butler designates as such. CFAF only disputes, ignores, or otherwise misrepresents only those cases it needs to dispute to duplicitously lie in support of its original bogus claim. As I have demonstrated time and time again. And will continue to demonstrate.
29. State v. Walker 2004AP2820-CR
In yet another of the seemingly endless parade of CFAF misrepresentations, CFAF "deems w/ Criminal" a sentencing case, which doesn't even deal with Walker's conviction, save for mentioning it twice in the course of the standard reiteration of the history of Walker's entire case. Needless to say, Walker's conviction remained 100% intact, exactly as Justice Butler has claimed. And, once again, Butler joined a UNANIMOUS court in leaving that conviction intact, but simply directing the circuit court to straighten out the details of Walker's sentencing.
Yet supporters of Mike Gableman continue to insist Justice Butler is lying. Disgraceful.
30. State v. Roberson 2003AP2802-CR
Butler, for the majority, writes to affirm the court of appeals decision which itself affirms Roberson's judgment of conviction. The Chief Justice dissents, joined by Justice Bradley. Why is this significant? Because Butler's critics will tell you that Butler is the most "liberal" member of the court. But in Roberson, Butler didn't just join the court's most "conservative" members as is often the case, and as the careful reader may have noted, but the most conservative members joined Butler. In full.
A hapless CFAF agrees, a fact that itself seems almost remarkable at this point.
Thank you all for reading, and please stay tuned for the next installment in the continuing saga of laughable ineptness and outright character assassination attempted against a sitting Justice of the Wisconsin Supreme Court, an experienced jurist of the highest intellectual quality and integrity and complete devotion to our sacrosanct constitutional principles who this great State should be proud to have serving on its highest court. And it should, without question, vote to keep him there on Tuesday.
The fact that his opponent has repeatedly and convincingly demonstrated his obvious unsuitability to replace Justice Butler is just gravy.
And please don't forget that the aforementioned and the forthcoming outrages are being perpetrated by a conservative Republican "family values" outfit and their little supporters and enablers, now caught with its baggy clown pants down and its lying ass exposed.
ttfn
To part 7 ...
March 28, 2008
The Lost Albatross
Emily at the Lost Albatross runs a fine blog out of Fitchburg Madison. She also writes for a number of the local papers there, and recently did a good straight news piece on the Butler/Gableman campaign. She was asking for comments on it at her blog, so I left this one:
Inadvertent or not, it's stooping pretty low, I'd say. If inadvertent, then the compiler of the "analysis" has clearly not read the case, the required initial step in constructing any purported "analysis."
There has also been much bickering back and forth over exactly how many criminal convictions Butler upheld during his time on the bench ...Careful readers may have noted that I have been very critical of attempts to label decisions of the Wisconsin Supreme Court as "pro-criminal," generally on constitutional grounds, and there is yet another reason why, one that would have never occurred to me.
I like that word, "bickering." There has been bickering, it's true. But the larger question is anything but petty, since Gableman has pretty much made it the centerpiece of his campaign.
It's unfortunate that the analysis that leads to any meaningful conclusion is both complex and subtle.
But, and here's the main thing, the figures that are emanating from several of Gableman's supporters have never even been close to adequately supported.
And, I just noticed, one of those supporters, in an attempt to classify Supreme Court opinions as either "pro-criminal" or otherwise, actually describes Justice Butler's involvement with a certain decision of the court as "siding with criminal's interest."
The "criminal," in that case, is a physically and mentally disabled woman and the circumstances of the case are both horrific and tragic.
It's the very case I discuss at the top of this post here.
It takes a rather conspicuous degree of callousness to describe this particular individual as a "criminal," especially since the conviction that resulted from her guilty plea was reversed, because she was deemed to not have understood what she was pleading guilty to in the first place.
It turns out that she may very well have been the one who was sexually assaulted. Furthermore, the description is about as blinding a beacon of allegedly "journalistic" bias against an individual I've come across in some time.
Inadvertent or not, it's stooping pretty low, I'd say. If inadvertent, then the compiler of the "analysis" has clearly not read the case, the required initial step in constructing any purported "analysis."
Gableman funnies II
Wisconsin Supreme Court Justice Louis Butler and Burnett County conservative Republican Mike Gableman held their last debate a while ago, and it was even enlightening to me, who's had just about as much enlightenment on the suitability of Gableman for the Supreme Court as he can stand.
One of the more amusing moments occurred when an audience member asked Gableman about the constitutional guarantee to due process of law and what he, as a member of the Supreme Court, would do to effect due process for those Wisconsinites who may find themselves in either a civil or criminal predicament while not poor enough for public defense but without the resources to hire a private attorney (that's a lot of Wisconsinites, by the way).
Gableman launched one or two of his complete repertoire of a half-dozen vacuous talking points, rambling on for nearly a minute about "fair application of the law" and "I've been a circuit judge longer than my opponent was" and yadda yadda yadda.
After he was done, the moderator asked the questioner whether he'd received a satisfactory answer. "Um, no," he said, and Gableman just went ahead and disgorged another non-responsive canned ramble.
Justice Butler, asked to reply, and who could have used the time to speak about anything, engaged the fellow's question and discussed a number of outreach centers the State government has set up to aid pro se parties, referred to some initiatives that the court is working with the legislature to implement, and talked about how the indigency standard hasn't changed since 1987 and such.
I was almost starting to feel sorry for Gableman. Until he actually succumbed to the poor judgment of calling Justice Butler — whose name is pronounced like Lewis — "Louie." Then I went back to my prior position. Butler has too much integrity to take that bait.
You keep staying classy, Mike Gableman, and, better yet, you keep staying a circuit judge even longer.
One of the more amusing moments occurred when an audience member asked Gableman about the constitutional guarantee to due process of law and what he, as a member of the Supreme Court, would do to effect due process for those Wisconsinites who may find themselves in either a civil or criminal predicament while not poor enough for public defense but without the resources to hire a private attorney (that's a lot of Wisconsinites, by the way).
Gableman launched one or two of his complete repertoire of a half-dozen vacuous talking points, rambling on for nearly a minute about "fair application of the law" and "I've been a circuit judge longer than my opponent was" and yadda yadda yadda.
After he was done, the moderator asked the questioner whether he'd received a satisfactory answer. "Um, no," he said, and Gableman just went ahead and disgorged another non-responsive canned ramble.
Justice Butler, asked to reply, and who could have used the time to speak about anything, engaged the fellow's question and discussed a number of outreach centers the State government has set up to aid pro se parties, referred to some initiatives that the court is working with the legislature to implement, and talked about how the indigency standard hasn't changed since 1987 and such.
I was almost starting to feel sorry for Gableman. Until he actually succumbed to the poor judgment of calling Justice Butler — whose name is pronounced like Lewis — "Louie." Then I went back to my prior position. Butler has too much integrity to take that bait.
You keep staying classy, Mike Gableman, and, better yet, you keep staying a circuit judge even longer.
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 . 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."
Forward!
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To part 6 ...
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 . 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."
Forward!
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To part 6 ...
CFAF "deemed" criminally inept: Part 4
Let's get into the cases now. This is how you do it, you read the cases, and have a look at what Wisconsin Supreme Court Justice Louis Butler actually did in each one. Here we go, with the first ten. Enjoy, and please pay close attention, local reporters and editorial board members. And then go and do your jobs, and report the truth.
01. State v. Harris 2006AP882-CR
CFAF's underhanded agenda is clearly evident from the very first case on its list (which isn't CFAF's list to begin with, it's a list produced by the Butler campaign. Think about that).
CFAF claims Harris shouldn't be included in the "sided with criminals" calculation because it "came up" (I'll assume that means decided) "after CFAF Ads began." Tough. In Harris, Justice Butler voted with a unanimous court to affirm a conviction of possession of cocaine with intent to deliver.
Why shouldn't Justice Butler get to count a case where he voted to affirm a criminal conviction? Is Butler supposed to be held to CFAF's schedule of character assassination, lies, and generally comic bumbling? I don't think so. How can CFAF and its little helpers actually suggest such a thing with a straight face? Makes you wonder, doesn't it.
02. State v. Hambly 2005AP3087-CR
03. State v. Ford 2006AP806-CR
Butler voted to affirm convictions in both cases. Ford involved three convictions. Undisputed by CFAF.
04. State v. Grady 2005AP2424-CR
Defendant Grady filed a motion to reconsider the court's earlier ruling involving two convictions. A unanimous court, led by Justice Wilcox, the court's most conservative member, voted to deny the defendant's motion. Not even CFAF can dispute this one.
Remember this case, for when you get to number 08. below. I hope you point and laugh at CFAF and all of its little helpers, because I sure did.
05. State v. Johnson 2005AP1492-CR
Another appeal from a "criminal's" sentencing. Johnson had been convicted of four counts: two batteries, one of disorderly conduct, and one of theft. Justice Prosser, another of the court's most conservative members, for a unanimous court (including Justice Butler, of course), wrote to deny the defendant any relief. Undisputed by CFAF.
06. State v. Jenkins 2005AP302-CR
"[Jenkins] had a lengthy criminal history, including two prior felony convictions, parole revocations, and incidents of violence. He was charged with selling heroin." He tried to withdraw a guilty plea. He was denied in the circuit court but the court of appeals reversed. The Supreme Court reversed the court of appeals, and the denial of Jenkins's motion was affirmed. Justice Butler agreed with that result, but wrote separately to make clear the distinction between plea withdrawals before and after sentencing. He was concerned that the majority opinion, which he did not join, needlessly muddied that distinction.
A colorable argument might be made that Butler's opinion potentially favors the rights of criminal defendants (heaven forbid) as opposed to the majority's conflating the separate situations of plea withdrawals, but CFAF isn't that bright, and doesn't dispute the Butler campaign's designation for this case. Maybe they should give me a call next time they need advice. Although I'd have second thoughts about taking their money, because I swore an oath of ethics.
As a matter of fact, I swore it in the presence of Justice David Prosser. Let me say something about Justice Prosser. He is an exceedingly friendly, kind, and generous man, and took his own time to ask each of us something about ourselves on that day.
Justice Prosser is regarded as one of the "conservative" members of the court. Sometimes, I don't agree with Justice Prosser's reasoning. But I'm glad he writes for the court, and if I had a disagreement with Justice Prosser's reasoning, I would explain why. I wouldn't just attack it baselessly, or misleadingly, as CFAF and even Mike Gableman has done to Justice Butler.
Justice Prosser, for example, got it really wrong in State v. Stenklyft. But that's cool. I'll let him stay on the court and see if he improves!
07. State v. Bannister 2005AP767-CR
Bannister is a case where Justice Butler reasoned that the defendant's conviction should be reversed, that's true. But Butler would have ordered a new trial, not let Bannister walk away scot free. And there is a purpose to why the Wisconsin Supreme Court has seven members. It's because there are different approaches to the law, in this case, the law of evidence, and the procedures that State prosecutors need to adhere to in order to protect every American's constitutional rights.
Butler disagreed that some evidence should have been admitted at trial, and he explains very clearly why. And if you read his dissenting opinion, you'll see that Butler gave the majority every benefit of the doubt as to whether or not the presentation of that evidence prejudiced the jury, which is the ultimate test on questions of admissibility of evidence.
Finally, dissenting opinions are practically a public service, because anybody can go and read these opinions. Even reporters, and editorial board members. Dissenting opinions give you a chance to compare their reasoning with the reasoning of the majority. And sometimes you might even agree with the dissenting opinion.
What's that? Did a conservative Republican mention the dissents to, for example, Roe v. Wade? Oooh ... good catch!
Nevertheless, Justice Butler would have ruled for a new trial — not the release of a "criminal" — and we can count this case "against" Justice Butler. Butler agrees, and CFAF doesn't dispute this case.
For obvious reasons. By the way, you'll notice that CFAF never disputes the interpretation of a case that Butler counts "against" himself. Never. Over the course of nearly 70 cases, given the complexities and subtleties inherent in these opinions, you'd think such a situation would arise at least once, wouldn't you?
Haha. You're funny.
08. State v. Grady 2005AP2424-CR
More comedy here. CFAF didn't count this case, because they saw "State v. Grady" two times on Butler's list of 62 cases. So CFAF went, 'Buh?' "This the same case as #4" [sic]. But CFAF was very hasty in its desperation to try and support its phony misportrayal of Justice Butler's record. Because Grady's sentencing for two convictions went before the court two times. In the first Grady, Grady I, Justice Butler voted with a unanimous court to deny Grady another kick at the can. Then, Grady tried again, and in Grady II, a few months later, Butler again voted with a unanimous court to deny Grady a kick at Grady I (Justice Ziegler did not participate).
So Butler ruled against this "criminal" two times. Except CFAF doesn't want Butler to count the second ruling. How come, you might ask. Because they'll do anything they can to further their goal of character assassination, that's how come, including even allowing themselves to look really, really dumb and embarrassed and foolish.
You might say, well, okay. We'll let Justice Butler count Grady I, but not Grady II, because all Grady II did was affirm Grady I, which left Grady's two convictions fully intact. You might say that.
But here's the best part. CFAF counted Grady II, but not Grady I! Them smart, yes? Here's some helpful information for CFAF and their little friends, that might come in handy the next time they engage in a campaign of lies to attack the character of a good man, and a fine jurist: II+I=IV.
09. State v. House 2005AP002202-CR
Justice Butler voted to affirm House's conviction, together with Justices Prosser, Roggensack, and Wilcox, the three most conservative members of the court. Chief Justice Abrahamson dissented. Even the CFAF brain trust got this one right, and doesn't dispute Butler's list. One thing CFAF won't tell you, of course, is that Butler and Wilcox were in 100% agreement for affirming the "criminal's" conviction. Because Justice Wilcox was the "conservative" judge, and CFAF wants you to think that Butler is the "liberal" judge.
And, Burnett County conservative Republican Mike Gableman wants you to think he is just like Justice Wilcox, and not like Justice Butler. But in this case, Justice Butler was exactly the same as Justice Wilcox! So what the hell is Gableman talking about?
Because the truth is, in the cases that the court accepted for review, Butler voted against the defendant about 75% of the time. CFAF really, really, really doesn't want you to know this. They would rather lie. Because lying is a family value, don't you know? At least, in the conservative Republican version of family values, I guess.
10. State v. Mayo 2004AP1592-CR
I already talked about State v. Mayo right here. CFAF really and truly f*cked up royally on this case. Please go read my post. You'll be, as I am, pretty appalled at CFAF's negligence. Not to mention the negligence — or worse — committed by everybody that has been relying on CFAF's "analysis," or worse still, defending it.
I probably don't need to go on, but I will. Because I can't wait to tell you about Stenklyft. Not only does CFAF, Jessica McBride, and any other supporters and defenders of CFAF's incompetent drivel misrepresent the opinions (there are three), but so does Mike Gableman himself, in his own campaign literature.
And the misrepresentations of Stenklyft really piss me off. Because Stenklyft is another case that contains an issue that goes directly to the heart of the American system of constitutional democracy. And when people deliberately misrepresent that, it irritates me.
Okay, I say it irritates me but in some instances I'm actually laughing my ass off at the sheer buffoonery of it all. And that's another reason why the Gableman campaign's portayal of Stenklyft is entertaining.
And remember when Mike Gableman said he wasn't aware of any study that contradicted CFAF's bogus claims? Well, guess what. Here it comes. He can keep saying he isn't aware of it, but that doesn't mean there isn't one.
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To part 5 ...
01. State v. Harris 2006AP882-CR
CFAF's underhanded agenda is clearly evident from the very first case on its list (which isn't CFAF's list to begin with, it's a list produced by the Butler campaign. Think about that).
CFAF claims Harris shouldn't be included in the "sided with criminals" calculation because it "came up" (I'll assume that means decided) "after CFAF Ads began." Tough. In Harris, Justice Butler voted with a unanimous court to affirm a conviction of possession of cocaine with intent to deliver.
Why shouldn't Justice Butler get to count a case where he voted to affirm a criminal conviction? Is Butler supposed to be held to CFAF's schedule of character assassination, lies, and generally comic bumbling? I don't think so. How can CFAF and its little helpers actually suggest such a thing with a straight face? Makes you wonder, doesn't it.
02. State v. Hambly 2005AP3087-CR
03. State v. Ford 2006AP806-CR
Butler voted to affirm convictions in both cases. Ford involved three convictions. Undisputed by CFAF.
04. State v. Grady 2005AP2424-CR
Defendant Grady filed a motion to reconsider the court's earlier ruling involving two convictions. A unanimous court, led by Justice Wilcox, the court's most conservative member, voted to deny the defendant's motion. Not even CFAF can dispute this one.
Remember this case, for when you get to number 08. below. I hope you point and laugh at CFAF and all of its little helpers, because I sure did.
05. State v. Johnson 2005AP1492-CR
Another appeal from a "criminal's" sentencing. Johnson had been convicted of four counts: two batteries, one of disorderly conduct, and one of theft. Justice Prosser, another of the court's most conservative members, for a unanimous court (including Justice Butler, of course), wrote to deny the defendant any relief. Undisputed by CFAF.
06. State v. Jenkins 2005AP302-CR
"[Jenkins] had a lengthy criminal history, including two prior felony convictions, parole revocations, and incidents of violence. He was charged with selling heroin." He tried to withdraw a guilty plea. He was denied in the circuit court but the court of appeals reversed. The Supreme Court reversed the court of appeals, and the denial of Jenkins's motion was affirmed. Justice Butler agreed with that result, but wrote separately to make clear the distinction between plea withdrawals before and after sentencing. He was concerned that the majority opinion, which he did not join, needlessly muddied that distinction.
A colorable argument might be made that Butler's opinion potentially favors the rights of criminal defendants (heaven forbid) as opposed to the majority's conflating the separate situations of plea withdrawals, but CFAF isn't that bright, and doesn't dispute the Butler campaign's designation for this case. Maybe they should give me a call next time they need advice. Although I'd have second thoughts about taking their money, because I swore an oath of ethics.
As a matter of fact, I swore it in the presence of Justice David Prosser. Let me say something about Justice Prosser. He is an exceedingly friendly, kind, and generous man, and took his own time to ask each of us something about ourselves on that day.
Justice Prosser is regarded as one of the "conservative" members of the court. Sometimes, I don't agree with Justice Prosser's reasoning. But I'm glad he writes for the court, and if I had a disagreement with Justice Prosser's reasoning, I would explain why. I wouldn't just attack it baselessly, or misleadingly, as CFAF and even Mike Gableman has done to Justice Butler.
Justice Prosser, for example, got it really wrong in State v. Stenklyft. But that's cool. I'll let him stay on the court and see if he improves!
07. State v. Bannister 2005AP767-CR
Bannister is a case where Justice Butler reasoned that the defendant's conviction should be reversed, that's true. But Butler would have ordered a new trial, not let Bannister walk away scot free. And there is a purpose to why the Wisconsin Supreme Court has seven members. It's because there are different approaches to the law, in this case, the law of evidence, and the procedures that State prosecutors need to adhere to in order to protect every American's constitutional rights.
Butler disagreed that some evidence should have been admitted at trial, and he explains very clearly why. And if you read his dissenting opinion, you'll see that Butler gave the majority every benefit of the doubt as to whether or not the presentation of that evidence prejudiced the jury, which is the ultimate test on questions of admissibility of evidence.
Finally, dissenting opinions are practically a public service, because anybody can go and read these opinions. Even reporters, and editorial board members. Dissenting opinions give you a chance to compare their reasoning with the reasoning of the majority. And sometimes you might even agree with the dissenting opinion.
What's that? Did a conservative Republican mention the dissents to, for example, Roe v. Wade? Oooh ... good catch!
Nevertheless, Justice Butler would have ruled for a new trial — not the release of a "criminal" — and we can count this case "against" Justice Butler. Butler agrees, and CFAF doesn't dispute this case.
For obvious reasons. By the way, you'll notice that CFAF never disputes the interpretation of a case that Butler counts "against" himself. Never. Over the course of nearly 70 cases, given the complexities and subtleties inherent in these opinions, you'd think such a situation would arise at least once, wouldn't you?
Haha. You're funny.
08. State v. Grady 2005AP2424-CR
More comedy here. CFAF didn't count this case, because they saw "State v. Grady" two times on Butler's list of 62 cases. So CFAF went, 'Buh?' "This the same case as #4" [sic]. But CFAF was very hasty in its desperation to try and support its phony misportrayal of Justice Butler's record. Because Grady's sentencing for two convictions went before the court two times. In the first Grady, Grady I, Justice Butler voted with a unanimous court to deny Grady another kick at the can. Then, Grady tried again, and in Grady II, a few months later, Butler again voted with a unanimous court to deny Grady a kick at Grady I (Justice Ziegler did not participate).
So Butler ruled against this "criminal" two times. Except CFAF doesn't want Butler to count the second ruling. How come, you might ask. Because they'll do anything they can to further their goal of character assassination, that's how come, including even allowing themselves to look really, really dumb and embarrassed and foolish.
You might say, well, okay. We'll let Justice Butler count Grady I, but not Grady II, because all Grady II did was affirm Grady I, which left Grady's two convictions fully intact. You might say that.
But here's the best part. CFAF counted Grady II, but not Grady I! Them smart, yes? Here's some helpful information for CFAF and their little friends, that might come in handy the next time they engage in a campaign of lies to attack the character of a good man, and a fine jurist: II+I=IV.
09. State v. House 2005AP002202-CR
Justice Butler voted to affirm House's conviction, together with Justices Prosser, Roggensack, and Wilcox, the three most conservative members of the court. Chief Justice Abrahamson dissented. Even the CFAF brain trust got this one right, and doesn't dispute Butler's list. One thing CFAF won't tell you, of course, is that Butler and Wilcox were in 100% agreement for affirming the "criminal's" conviction. Because Justice Wilcox was the "conservative" judge, and CFAF wants you to think that Butler is the "liberal" judge.
And, Burnett County conservative Republican Mike Gableman wants you to think he is just like Justice Wilcox, and not like Justice Butler. But in this case, Justice Butler was exactly the same as Justice Wilcox! So what the hell is Gableman talking about?
Because the truth is, in the cases that the court accepted for review, Butler voted against the defendant about 75% of the time. CFAF really, really, really doesn't want you to know this. They would rather lie. Because lying is a family value, don't you know? At least, in the conservative Republican version of family values, I guess.
10. State v. Mayo 2004AP1592-CR
I already talked about State v. Mayo right here. CFAF really and truly f*cked up royally on this case. Please go read my post. You'll be, as I am, pretty appalled at CFAF's negligence. Not to mention the negligence — or worse — committed by everybody that has been relying on CFAF's "analysis," or worse still, defending it.
I probably don't need to go on, but I will. Because I can't wait to tell you about Stenklyft. Not only does CFAF, Jessica McBride, and any other supporters and defenders of CFAF's incompetent drivel misrepresent the opinions (there are three), but so does Mike Gableman himself, in his own campaign literature.
And the misrepresentations of Stenklyft really piss me off. Because Stenklyft is another case that contains an issue that goes directly to the heart of the American system of constitutional democracy. And when people deliberately misrepresent that, it irritates me.
Okay, I say it irritates me but in some instances I'm actually laughing my ass off at the sheer buffoonery of it all. And that's another reason why the Gableman campaign's portayal of Stenklyft is entertaining.
And remember when Mike Gableman said he wasn't aware of any study that contradicted CFAF's bogus claims? Well, guess what. Here it comes. He can keep saying he isn't aware of it, but that doesn't mean there isn't one.
ttfn
To part 5 ...
March 27, 2008
Fraley funnies III
folkbum for the Win.
"Bang! Boom! Crash! Case closed! QED! Or, perhaps, ROTFLMAO."
Seems everybody knew that complaint was a P.O.S. from the get-go. Except, of course, Fraley, "Fred," and friends. Fraley charges money for "critical thinking." How come nobody's complaining about that?
Is anybody capable of engaging Wisconsin Supreme Court Justice Louis Butler without making a fool of themselves?
"Bang! Boom! Crash! Case closed! QED! Or, perhaps, ROTFLMAO."
Seems everybody knew that complaint was a P.O.S. from the get-go. Except, of course, Fraley, "Fred," and friends. Fraley charges money for "critical thinking." How come nobody's complaining about that?
Is anybody capable of engaging Wisconsin Supreme Court Justice Louis Butler without making a fool of themselves?
CFAF "deemed" criminally inept: Part 3
Being a chronology of the pertinent events, with occasional commentary as appropriate (or not), since my good friend and longtime supporter Jay Bullock has indicated that I haven't made it entirely clear, and he's probably right. It's been a little difficult to find the time, but I'm counting on it being worth it in both the short and longer runs.
The rough chronology
01. The Coalition for America's families (CFAF) begins circulating the thoroughly unsupported and unsupportable falsehood that Wisconsin Supreme Court Justice Louis Butler "sides with criminals 60% of the time."
02. Burnett County conservative Republican Michael Gableman begins repeating the unsupported falsehood for the purposes of his ongoing attacks against Justice Butler. In fact, it's become the entire basis for the Gableman campaign, a campaign constructed and executed almost completely upon this overarching falsehood, as well as a number of other more specific falsehoods, many of which have been debunked at this blog and of course, by the Butler campaign and elsewhere.
Yet Gableman continues the phony attacks on Justice Butler's record undaunted.
I'm finding it increasingly difficult to refer to Gableman as "Judge" Gableman. While I'm not in a position to comment one way or the other as to his competence as an actual jurist in Burnett County, the judgment he has shown in conducting his appalling campaign of deliberately misleading characterizations of the law and the U.S. constitutional system generally is poor, to say the least. So henceforth Burnett County conservative Republican Gableman he shall be.
Since it's as a conservative Republican that Gableman is effectively campaigning in this statutorily-mandated non-partisan State election, he couldn't possibly take it as anything other than a compliment, and perhaps even as a gesture of support. It isn't. And as dedicated followers of your present correspondent are well aware, it clearly isn't meant as a compliment, either.
03. Despite Butler's numerous requests for clarification, Gableman refuses to do so, another hallmark of the Gableman campaign.
Witness Gableman's refusal to support with any substance whatsoever his objections to several individual cases in which Justice Butler participated, despite Butler's repeated requests. Gableman claims he can't comment because there may be issues that come before him on the Supreme Court (a singularly frightening proposition).
If that is so, then why isn't Butler himself as reticent to discuss them? Because he's already on the Supreme Court. Think about it. I have. I've reached a conclusion or two. More on that later.
04. The Butler campaign decides to respond to the baseless CFAF charges, and prepares a list of cases. A preliminary list of 62 cases is released to the press.
05. The preliminary list of 62 cases bearing mysterious numerical designations in sets of parentheses is seized upon by University of Wisconsin-Milwaukee journalism instructor and reputedly "influential Wisconsin blogger" Jessica McBride, who obtains another free Google Blogspot account and sets about her devious tasks, in typically unimpeachable and professionally objective, fact-intensive style. She also gets the opportunity to display her considerable legal acumen.
06. Meanwhile, unbenownst to the diligent investigative efforts of McBride, the Butler campaign releases a revised list, this one containing a total of 70 cases (71 if you count both Marquandts, which appear as one line item on the list of 70 cases.)
07. McBride inaugurates her latest free Google Blogspot account, the dispassionate- and authoritative-sounding "Election Watch Wisconsin." Hilarity ensues. And ensues.
08. Milwaukee Journal-Sentinel editorial board member and all 'round "right-wing guy" Patrick McIlheran lends his considerable influence to McBride's ridiculously inept hatchet job and accuses Justice Butler of "um ... prevaricating."
Marquette Law Professor and self-professing neutral party Rick Esenberg leaps to McBride's defense, straining all credulity, credibility, and whatever else one strains by leaping inadvisedly to the defense of hack reporters, whilst grasping at the opportunity to allege that Butler has "cooked the numbers" after glancing at three or four of the 70 case names and actually recognizing a couple.
Hilarity ensues.
09. McBride discovers revised list of 70 cases, which was released by Butler while she was hammering furiously at producing 07. Hilarity ensues. Investigative journalism award nominations sought.
10. CFAF "analysis" emerges, "deemed" steaming pile of miscellaneous bowel movement. Local blogger determines CFAF used the identical list of 62 cases as did 05. in a desperate but ultimately comically failed attempt to justify blatant misrepresentations of Justice Butler's record in criminal cases before the Wisconsin Supreme Court.
11. McBride returns with another fusillade of unsupported accusations, borderline defamation, and hilarious mispresentations of Wisconsin Supreme Court opinions. McBride's latest is noted to be uncannily similar in both content and order to 10. McBride, in a nearly identical fashion to CFAF's nonsensical claim, affirms CFAF's notorious "60%" figure as being in actuality "58%", supported by ... absolutely nothing.
Indeed, McBride's latest is an incoherent mess of a misleading dog's breakfast surpassing in gibberish-quotient perhaps even her previous two incoherent messes of misleading dog's breakfast. Example:
Onward, finally, to the cases, the methodology, and the numbers.
Sneak preview: Butler was, and is, right on the money all along.
To part 4 ...
The rough chronology
01. The Coalition for America's families (CFAF) begins circulating the thoroughly unsupported and unsupportable falsehood that Wisconsin Supreme Court Justice Louis Butler "sides with criminals 60% of the time."
02. Burnett County conservative Republican Michael Gableman begins repeating the unsupported falsehood for the purposes of his ongoing attacks against Justice Butler. In fact, it's become the entire basis for the Gableman campaign, a campaign constructed and executed almost completely upon this overarching falsehood, as well as a number of other more specific falsehoods, many of which have been debunked at this blog and of course, by the Butler campaign and elsewhere.
Yet Gableman continues the phony attacks on Justice Butler's record undaunted.
I'm finding it increasingly difficult to refer to Gableman as "Judge" Gableman. While I'm not in a position to comment one way or the other as to his competence as an actual jurist in Burnett County, the judgment he has shown in conducting his appalling campaign of deliberately misleading characterizations of the law and the U.S. constitutional system generally is poor, to say the least. So henceforth Burnett County conservative Republican Gableman he shall be.
Since it's as a conservative Republican that Gableman is effectively campaigning in this statutorily-mandated non-partisan State election, he couldn't possibly take it as anything other than a compliment, and perhaps even as a gesture of support. It isn't. And as dedicated followers of your present correspondent are well aware, it clearly isn't meant as a compliment, either.
03. Despite Butler's numerous requests for clarification, Gableman refuses to do so, another hallmark of the Gableman campaign.
Witness Gableman's refusal to support with any substance whatsoever his objections to several individual cases in which Justice Butler participated, despite Butler's repeated requests. Gableman claims he can't comment because there may be issues that come before him on the Supreme Court (a singularly frightening proposition).
If that is so, then why isn't Butler himself as reticent to discuss them? Because he's already on the Supreme Court. Think about it. I have. I've reached a conclusion or two. More on that later.
04. The Butler campaign decides to respond to the baseless CFAF charges, and prepares a list of cases. A preliminary list of 62 cases is released to the press.
05. The preliminary list of 62 cases bearing mysterious numerical designations in sets of parentheses is seized upon by University of Wisconsin-Milwaukee journalism instructor and reputedly "influential Wisconsin blogger" Jessica McBride, who obtains another free Google Blogspot account and sets about her devious tasks, in typically unimpeachable and professionally objective, fact-intensive style. She also gets the opportunity to display her considerable legal acumen.
06. Meanwhile, unbenownst to the diligent investigative efforts of McBride, the Butler campaign releases a revised list, this one containing a total of 70 cases (71 if you count both Marquandts, which appear as one line item on the list of 70 cases.)
07. McBride inaugurates her latest free Google Blogspot account, the dispassionate- and authoritative-sounding "Election Watch Wisconsin." Hilarity ensues. And ensues.
08. Milwaukee Journal-Sentinel editorial board member and all 'round "right-wing guy" Patrick McIlheran lends his considerable influence to McBride's ridiculously inept hatchet job and accuses Justice Butler of "um ... prevaricating."
Marquette Law Professor and self-professing neutral party Rick Esenberg leaps to McBride's defense, straining all credulity, credibility, and whatever else one strains by leaping inadvisedly to the defense of hack reporters, whilst grasping at the opportunity to allege that Butler has "cooked the numbers" after glancing at three or four of the 70 case names and actually recognizing a couple.
Hilarity ensues.
09. McBride discovers revised list of 70 cases, which was released by Butler while she was hammering furiously at producing 07. Hilarity ensues. Investigative journalism award nominations sought.
10. CFAF "analysis" emerges, "deemed" steaming pile of miscellaneous bowel movement. Local blogger determines CFAF used the identical list of 62 cases as did 05. in a desperate but ultimately comically failed attempt to justify blatant misrepresentations of Justice Butler's record in criminal cases before the Wisconsin Supreme Court.
11. McBride returns with another fusillade of unsupported accusations, borderline defamation, and hilarious mispresentations of Wisconsin Supreme Court opinions. McBride's latest is noted to be uncannily similar in both content and order to 10. McBride, in a nearly identical fashion to CFAF's nonsensical claim, affirms CFAF's notorious "60%" figure as being in actuality "58%", supported by ... absolutely nothing.
Indeed, McBride's latest is an incoherent mess of a misleading dog's breakfast surpassing in gibberish-quotient perhaps even her previous two incoherent messes of misleading dog's breakfast. Example:
No wonder she doesn't allow comments. She classifies Justice Butler's role in a case called State v. Daley as, "pro-criminal."Patterns emerge. Questions are raised. Little doubt remains that McBride has been in close cahoots with CFAF, likely since day one. Hilarity ensues. Eventual complete collapse of conservative Republican Mike Gableman's bogus campaign of misrepresentations and unwarranted character assassination appears imminent.
"Court vacated appellate decision affirming conviction," is McBride's terse description.
While the defendant was indeed asking for review of the appellate court decision affirming his conviction, guess who also wanted the appellate decision vacated, because it conflicted with an earlier appellate court opinion?
Correct, the State of Wisconsin. And the reason the (UNANIMOUS) Supreme Court vacated the appellate court's decision was so the appellate court could revisit the case in light of the earlier decision, which is what the State, not the defendant, wanted.
That's an example of Justice Butler's "pro-criminal" attitude.
Onward, finally, to the cases, the methodology, and the numbers.
Sneak preview: Butler was, and is, right on the money all along.
To part 4 ...
Another case study in irresponsible journalism
I'm putting this in a separate post, because it's too important to potentially get lost in the lengthy posts soon to follow. There is at least one more blatant howler in Jessica McBride's latest effort to justify her own falsehoods along with those of her partners in prevarication, the Coalition for America's Families.
But this time it's not just comical, it's pretty serious, and even I am not laughing. Recoiling in horror is the more appropriate reaction.
Apparently McBride has divided up the cases in which Wisconsin Supreme Court Justice Louis Butler participated according to calendar year, and has produced a set of colorful bar graphs. Who knows what the lengths of the bars are based on — she doesn't even come close to explaining how she analyzed each case, apart from muttering something about her "judgment calls," a frightening enough proposition in and of itself.
McBride contends she's spotted a downward trend in Butler's 'pro-criminality' that she noticed for 2007, as Butler's 2008 retention election became imminent.
I'm not sure that real statisticians would dare to identify as a trend in a sample of four where one of the samples is at minor variance with the other three, least of all where there exists little, if any, meaningful explanation as to how the raw figures informing the graphs were evaluated apart from McBride's own "judgment calls."
But we're talking about Jessica McBride here, not a statistician. Nevertheless, and based apparently upon her keenly independent and objective analytical powers, McBride alleges that Butler adjusted his approach to cases before the court with a view to his upcoming run to retain his seat on the bench:
Not personal and political ambitions exercised to reach the court, personal and political ambitions exercised while on the court, and while deciding cases between parties. Those are crucial distinctions, to which McBride should have allowed considerably more reflection before publishing.
No doubt the unsuccessful parties in the cases underlying that allegation would be most interested to get their hands on McBride's information.
Let me say it again: McBride's is an extremely serious charge to level against a sitting Justice of the State Supreme Court, and it may well even be actionable.
Fortunately for McBride, while the charge is serious, and almost unspeakably irresponsible without any proof of it — to put it mildly — it's absolutely impossible to take McBride seriously, although it's unclear whether that is an effective defense against a defamation action. Unless McBride's blog is parody, which is entirely possible.
A bit further along, immediately before the 2007 bar chart, McBride hoots:
It's hard to believe, it truly is.
Perhaps someday somebody can explain to me why anyone in their right mind takes this person's "journalism" at face value, let alone trumpeting it uncritically in a major metropolitan daily newspaper and linked to by any self-respecting "blogger" for reasons other than perversely comic entertainment.
And did McBride the pretend statistician factor her conclusions to correct for Butler's declining inclination toward 'pro-criminality'?
Unlikely. What a complete and utter farce.
But this time it's not just comical, it's pretty serious, and even I am not laughing. Recoiling in horror is the more appropriate reaction.
Apparently McBride has divided up the cases in which Wisconsin Supreme Court Justice Louis Butler participated according to calendar year, and has produced a set of colorful bar graphs. Who knows what the lengths of the bars are based on — she doesn't even come close to explaining how she analyzed each case, apart from muttering something about her "judgment calls," a frightening enough proposition in and of itself.
McBride contends she's spotted a downward trend in Butler's 'pro-criminality' that she noticed for 2007, as Butler's 2008 retention election became imminent.
I'm not sure that real statisticians would dare to identify as a trend in a sample of four where one of the samples is at minor variance with the other three, least of all where there exists little, if any, meaningful explanation as to how the raw figures informing the graphs were evaluated apart from McBride's own "judgment calls."
But we're talking about Jessica McBride here, not a statistician. Nevertheless, and based apparently upon her keenly independent and objective analytical powers, McBride alleges that Butler adjusted his approach to cases before the court with a view to his upcoming run to retain his seat on the bench:
Interestingly, Butler has become less inclined to side with criminal defendants' interests in 2007 to present, seemingly remaking himself for his campaign.It's a pretty serious charge to make against a judge, and it may even be actionable. The clear inference is that Justice Butler deliberately deferred to his own personal and political ambitions in order to reach dispositions in cases before the Supreme Court.
Not personal and political ambitions exercised to reach the court, personal and political ambitions exercised while on the court, and while deciding cases between parties. Those are crucial distinctions, to which McBride should have allowed considerably more reflection before publishing.
No doubt the unsuccessful parties in the cases underlying that allegation would be most interested to get their hands on McBride's information.
Let me say it again: McBride's is an extremely serious charge to level against a sitting Justice of the State Supreme Court, and it may well even be actionable.
Fortunately for McBride, while the charge is serious, and almost unspeakably irresponsible without any proof of it — to put it mildly — it's absolutely impossible to take McBride seriously, although it's unclear whether that is an effective defense against a defamation action. Unless McBride's blog is parody, which is entirely possible.
A bit further along, immediately before the 2007 bar chart, McBride hoots:
REELECTION TIME!!!And then, immediately after the chart,
(Note: You're reading it right. The court as a whole got less pro criminal)Got that? Right after essentially accusing Justice Butler of some fairly profound professional and judicial impropriety, she apparently acknowledges that the same "trend" affected the entire court.
It's hard to believe, it truly is.
Perhaps someday somebody can explain to me why anyone in their right mind takes this person's "journalism" at face value, let alone trumpeting it uncritically in a major metropolitan daily newspaper and linked to by any self-respecting "blogger" for reasons other than perversely comic entertainment.
And did McBride the pretend statistician factor her conclusions to correct for Butler's declining inclination toward 'pro-criminality'?
Unlikely. What a complete and utter farce.
capper, love him and hate him
I love capper because, well, what's not to love. But I also hate capper for alerting me to nonsense like this.
As I have explained and demonstrated repeatedly, one cannot label opinions of the Wisconsin Supreme Court as "pro-criminal" simply because a criminal defendant prevailed on the merits. To do so is both blatantly disingenuous and an essentially textbook example of the logical fallacy known as "poisoning the well."
("Poisoning the well" is actually a fairly apt description for the Gableman campaign nearly in its entirety, so that his supporters perpetrate it regularly and consistently is no surprise whatsoever.)
Since many of these cases involve extremely narrow and subtle questions pursuant to interpreting the U.S. or Wisconsin constitutions — or some relationship between the two — one might as well just label the entire Bill of Rights as "pro-criminal."
Or, as Gableman's daft and monied supporters at Wisconsin Manufacturers & Commerce would have it, a "needless technicality."
And to do that is effectively a disgraceful, un-American assault on the underpinnings of the entire U.S. system of justice, and not just criminal law justice. If that's the case, why even have courts? Or, for that matter, why not just completely scuttle the Bill of Rights altogether? Wouldn't that be the logical thing to do? Because that is precisely where Jessica McBride's faux "scholarship" leads.
And, as usual, McBride's laughably embarrassing misunderstandings practically jump off the page, horrifying grammar and all, e.g.,
Yet we're expected to accept McBride's "judgment calls"? Riiight.
Moreover, and perhaps not coincidentally, McBride's latest "analysis" arrives at exactly the same figure, 58%, that the Coalition for America's Families claims (58.62%, to be precise) in its monumentally inept and desperate failure to justify its original falsehood that Butler "sides with criminals 60% of the time."
I also explained Jensen in some detail more than once, most recently in this post. I've also pointed out — and this is very important — that
According to Google Analytics, which tracks blog activity, the same individual "referred" by McBride's own Google account has been viewing illusorytenant.blogspot.com on a nearly daily basis for several weeks. What's she doing, looking at the pictures?
Back to work.
As I have explained and demonstrated repeatedly, one cannot label opinions of the Wisconsin Supreme Court as "pro-criminal" simply because a criminal defendant prevailed on the merits. To do so is both blatantly disingenuous and an essentially textbook example of the logical fallacy known as "poisoning the well."
("Poisoning the well" is actually a fairly apt description for the Gableman campaign nearly in its entirety, so that his supporters perpetrate it regularly and consistently is no surprise whatsoever.)
Since many of these cases involve extremely narrow and subtle questions pursuant to interpreting the U.S. or Wisconsin constitutions — or some relationship between the two — one might as well just label the entire Bill of Rights as "pro-criminal."
Or, as Gableman's daft and monied supporters at Wisconsin Manufacturers & Commerce would have it, a "needless technicality."
And to do that is effectively a disgraceful, un-American assault on the underpinnings of the entire U.S. system of justice, and not just criminal law justice. If that's the case, why even have courts? Or, for that matter, why not just completely scuttle the Bill of Rights altogether? Wouldn't that be the logical thing to do? Because that is precisely where Jessica McBride's faux "scholarship" leads.
And, as usual, McBride's laughably embarrassing misunderstandings practically jump off the page, horrifying grammar and all, e.g.,
[In State v. Jensen, Justice Butler] wanted looser standard than other justices on allowing hearsay; standard preferred by Jensen's attorneyUm, no. In FACT, Butler's lone dissent in Jensen, which appears likely to be affirmed by the considerably more conservative United States Supreme Court, argued for a TIGHTER, TWO-STEP APPROACH under the Sixth Amendment's Confrontation Clause.
Yet we're expected to accept McBride's "judgment calls"? Riiight.
Moreover, and perhaps not coincidentally, McBride's latest "analysis" arrives at exactly the same figure, 58%, that the Coalition for America's Families claims (58.62%, to be precise) in its monumentally inept and desperate failure to justify its original falsehood that Butler "sides with criminals 60% of the time."
I also explained Jensen in some detail more than once, most recently in this post. I've also pointed out — and this is very important — that
Butler's approach [in Jensen] exemplifies both narrow textualism and original intent, two doctrines of constitutional interpretation to which political conservatives normally proclaim undying devotion.And that troublesome hypocrisy is but one especially compelling among countless reasons why this ridiculous designation of "pro-criminal" is, to say the very least, problematic.
According to Google Analytics, which tracks blog activity, the same individual "referred" by McBride's own Google account has been viewing illusorytenant.blogspot.com on a nearly daily basis for several weeks. What's she doing, looking at the pictures?
Back to work.
March 26, 2008
Plaisted nails it once more
Garbage Time.
They can bitch and gripe about Atty. Plaisted's evocative language (which I dig, of course) all they want, but they can't rebut it.
They can bitch and gripe about Atty. Plaisted's evocative language (which I dig, of course) all they want, but they can't rebut it.
Sykes lying for Gableman — again
The Brawler has caught a local squawking mammal lying again.
You won't catch the Brawler Knapping on the job. How wonderful, in the meantime, that Mike Gableman's supporters must lie about Louis Butler's record, a sitting State Supreme Court Justice.
They must all be very proud.
The press coverage of this race, incidentally, is utterly baffling. "Both sides are slinging mud," they tell us, as if there was some manner of mudslinging equilibrium.
Horse. Shit. While misrepresenting the law and the American constitutional scheme for the purposes of tearing down a good man's character is certainly mudslinging, pointing out — with evidence — in response that the Gableman campaign has been engaging in dishonesty and misrepresentation practically since day one hardly is.
Smarten up and get with the program, local reporters, and do your damn jobs. All of you. Where is WISN Channel 12's Colleen Henry these days? She has a law degree. She should know the score.
This campaign should be right up her alley.
You won't catch the Brawler Knapping on the job. How wonderful, in the meantime, that Mike Gableman's supporters must lie about Louis Butler's record, a sitting State Supreme Court Justice.
They must all be very proud.
The press coverage of this race, incidentally, is utterly baffling. "Both sides are slinging mud," they tell us, as if there was some manner of mudslinging equilibrium.
Horse. Shit. While misrepresenting the law and the American constitutional scheme for the purposes of tearing down a good man's character is certainly mudslinging, pointing out — with evidence — in response that the Gableman campaign has been engaging in dishonesty and misrepresentation practically since day one hardly is.
Smarten up and get with the program, local reporters, and do your damn jobs. All of you. Where is WISN Channel 12's Colleen Henry these days? She has a law degree. She should know the score.
This campaign should be right up her alley.
Cooking with Esenberg
[Edited to add, Friday, March 28, 11.50 p.m.
Esenberg, to my knowledge, has yet to address any of the substantive questions I posed to him below, which I'd previously left at his blog as well. They seem like pretty straightforward questions to me, and I could answer them all immediately. Lately Esenberg has busied himself with still more defenses of McBride, and has been lauding her work, despite the fact that she has presented no useful or meaningful details for her conclusions. In the meantime, Prof. Esenberg has a few more questions to answer, which I've left in the comments section of his post here, one of four he's produced today, none of which reveal the sources of McBride's conclusions.]
The Coalition for America's Families (CFAF), a local conservative GOP outfit, claims that Wisconsin Supreme Court Justice Louis Butler "sided with criminals 60% of the time." This is, as I will continue to demonstrate, a thoroughly bogus fabrication. Here's another quick hit in the meantime.
In State v. Harris, a unanimous court, including Justice Butler, voted to affirm the criminal conviction of Harris, who was busted for possession with intent to deliver cocaine.
But CFAF doesn't even include Harris in its phony "analysis." Why not? Because, CFAF says, "This [case] came up after CFAF Ads began." Well, so what? You want to attack Butler for his record in affirming criminal convictions, and you toss out a case where Butler affirmed a criminal conviction because it doesn't coincide with your own schedule of manipulative jiggery pokery?
Because it's not convenient to your project of attacking Justice Butler with what are essentially lies? Give me a break.
This is how the conservative Republican "family values" crowd operates, apparently. The truth is, in cases involving criminal convictions, Justice Butler's votes went to reversing only about 25% of convictions, and that is not including Jerrell, C.J., a juvenile case that Marquette Law Professor Rick Esenberg says shouldn't be included in the calculation.
So even if one defers to Esenberg's quibbling, the number is a far, far cry from 60%, let me assure you.
Speaking of Esenberg, he made a rather illuminating remark the other day on this issue. In the course of supposedly evaluating the Butler campaign's list of 70 cases released in support of Butler's record in reviewing criminal appeals, Esenberg claimed, in a blog post provocatively entitled "It's not getting any better,"
Esenberg, like Jessica McBride, wants it both ways. They want to be able to criticize Justice Butler on certain cases, but they don't want to let Justice Butler cite to those very same cases in his own defense. How shamefacedly dishonest can you get?
But, you know, I'm not a scholar. However, I can see that dishonesty has been pretty much the hallmark of Burnett County conservative Republican Michael Gableman's campaign, so it's not all that surprising that his supporters have caught the bug.
Esenberg never answered my questions, incidentally, nor has he acknowledged how profoundly misguided his reference to "a number of cases" is. But that hasn't stopped Prof. Esenberg from accusing Butler of "cooking the numbers." We will see what Esenberg has to say about CFAF's little project, where, unlike in Esenberg's case, it can actually be demonstrated that they "cooked the numbers."
Gableman, who is quickly running short of GOP talking points now that they're getting systematically debunked on a daily basis, was even reduced to appealing to Esenberg's supportive observations during a debate with Justice Butler in Madison last night.
Esenberg continues to insist he isn't supporting either candidate in this election. Yet, at his blog, he's rushed a number of times to the defense of "Scoop" McBride, whose bungling attempt to analyze Justice Butler's record makes her a laughing stock.
Esenberg would sooner believe some ridiculous partisan hack than a sitting Justice of the Wisconsin Supreme Court. That's what gets me.
Yet Esenberg obviously hasn't looked at the numbers very closely either, as I have, nor has he said a word about CFAF's and others' complete falsehoods. But no, Esenberg isn't supporting either candidate. Not at all.
Maybe he's got some Florida swampland for sale also. Or credibility.
Esenberg, to my knowledge, has yet to address any of the substantive questions I posed to him below, which I'd previously left at his blog as well. They seem like pretty straightforward questions to me, and I could answer them all immediately. Lately Esenberg has busied himself with still more defenses of McBride, and has been lauding her work, despite the fact that she has presented no useful or meaningful details for her conclusions. In the meantime, Prof. Esenberg has a few more questions to answer, which I've left in the comments section of his post here, one of four he's produced today, none of which reveal the sources of McBride's conclusions.]
The Coalition for America's Families (CFAF), a local conservative GOP outfit, claims that Wisconsin Supreme Court Justice Louis Butler "sided with criminals 60% of the time." This is, as I will continue to demonstrate, a thoroughly bogus fabrication. Here's another quick hit in the meantime.
In State v. Harris, a unanimous court, including Justice Butler, voted to affirm the criminal conviction of Harris, who was busted for possession with intent to deliver cocaine.
But CFAF doesn't even include Harris in its phony "analysis." Why not? Because, CFAF says, "This [case] came up after CFAF Ads began." Well, so what? You want to attack Butler for his record in affirming criminal convictions, and you toss out a case where Butler affirmed a criminal conviction because it doesn't coincide with your own schedule of manipulative jiggery pokery?
Because it's not convenient to your project of attacking Justice Butler with what are essentially lies? Give me a break.
This is how the conservative Republican "family values" crowd operates, apparently. The truth is, in cases involving criminal convictions, Justice Butler's votes went to reversing only about 25% of convictions, and that is not including Jerrell, C.J., a juvenile case that Marquette Law Professor Rick Esenberg says shouldn't be included in the calculation.
So even if one defers to Esenberg's quibbling, the number is a far, far cry from 60%, let me assure you.
Speaking of Esenberg, he made a rather illuminating remark the other day on this issue. In the course of supposedly evaluating the Butler campaign's list of 70 cases released in support of Butler's record in reviewing criminal appeals, Esenberg claimed, in a blog post provocatively entitled "It's not getting any better,"
First, the campaign has included a number of cases involving civil commitments or adjudications of delinquency, in which there was no conviction at all."A number," Prof. Esenberg? What number might that be? Here's the comment I left at Esenberg's blog, Esenberg's words in bold:
First, the campaign has included a number of cases involving civil commitments ...The latter reference is to Esenberg's accusation against me that I have only been "sniping around the edges" when it comes to Butler's record in cases involving criminal convictions. It's pretty obvious now who's "sniping around the edges," and it's also pretty obvious that Esenberg hasn't evaluated the figures released by Butler's campaign anywhere near as closely as I have.
Two.
One of them, State v. Richard A. Brown, has been used repeatedly to attack Justice Butler.
Do you seriously expect him not to make reference to it in his defense?
The other, State v. Bush, is about as "anti-criminal" as it gets.
Do you seriously expect Butler not to cite this case in defense of the scurrilous attacks against his record?
or adjudications of delinquency, in which there was no conviction at all.
Adjudication, singular. There is but one juvenile case on that list. And you yourself have used it to criticize Justice Butler.
Do you seriously expect him to not make reference to it in his defense?
Let me ask you one more time: Who exactly is it that's "sniping around the edges" on this issue?
Esenberg, like Jessica McBride, wants it both ways. They want to be able to criticize Justice Butler on certain cases, but they don't want to let Justice Butler cite to those very same cases in his own defense. How shamefacedly dishonest can you get?
But, you know, I'm not a scholar. However, I can see that dishonesty has been pretty much the hallmark of Burnett County conservative Republican Michael Gableman's campaign, so it's not all that surprising that his supporters have caught the bug.
Esenberg never answered my questions, incidentally, nor has he acknowledged how profoundly misguided his reference to "a number of cases" is. But that hasn't stopped Prof. Esenberg from accusing Butler of "cooking the numbers." We will see what Esenberg has to say about CFAF's little project, where, unlike in Esenberg's case, it can actually be demonstrated that they "cooked the numbers."
Gableman, who is quickly running short of GOP talking points now that they're getting systematically debunked on a daily basis, was even reduced to appealing to Esenberg's supportive observations during a debate with Justice Butler in Madison last night.
Esenberg continues to insist he isn't supporting either candidate in this election. Yet, at his blog, he's rushed a number of times to the defense of "Scoop" McBride, whose bungling attempt to analyze Justice Butler's record makes her a laughing stock.
Esenberg would sooner believe some ridiculous partisan hack than a sitting Justice of the Wisconsin Supreme Court. That's what gets me.
Yet Esenberg obviously hasn't looked at the numbers very closely either, as I have, nor has he said a word about CFAF's and others' complete falsehoods. But no, Esenberg isn't supporting either candidate. Not at all.
Maybe he's got some Florida swampland for sale also. Or credibility.
March 25, 2008
CFAF "deemed" criminally inept: Part 2
The List(s)
As I pointed out in Part 1, the designation "pro-criminal" is a fundamental absurdity. Nonetheless undeterred by any such self-imposed absurdism, CFAF has most recently attempted to justify its "60% pro-criminal" figure by producing its own list of Wisconsin Supreme Court decisions, beside the names of which appear either nothing or the designation "CFAF deems w/ Criminal." In other words, CFAF "deems" that in such and such a case, Justice Butler sided "with" his buddies, the criminals.
Hmm. This list looks mighty familiar, I must say. Wait a minute ... could it be? Yes! It's the same list that Jessica McBride reproduced at her "special election edition" blog on Tuesday, March 18. It's the exact same list of cases, numbered from 1. to 62. in the exact same order and the same list that McBride says is "the actual list provided to the media by Butler." CFAF is actually using Butler's own list, those wacky scamps!
But hang on then, Mr. tenant, couldn't it be a coincidence? After all, you godless evilutionists are fond of claiming that this magnificently ordered universe of ours came about by "pure random chance," why couldn't have CFAF produced this list before Butler put his together, and it was pure coincidence that Butler came up with the same list of cases! Aha! I've got you now, Mr. tenant!
Only one problem: CFAF's list has the identical typo in case 10., State v. Mayo, 2005AP1592-CR. The correct docket number is 2004AP1592. This is Butler's list, the preliminary draft copy that got out before Butler's revised list of 70 cases. How do you like them apples?
Wall to wall buffoonery
The continually emergent comedy inheres in four aspects.
CFAF and its little helper Jessica McBride wants you to differ from Butler's analysis, but it wants you to differ using the Butler campaign's own research and documents. Isn't that something.
Apparently CFAF couldn't even come up with its own list of cases upon which to support its "60% pro-criminal" figure. That tells me it never had one. Which tells me further that CFAF produced the figure from its collective sphincter, which I really hope tightens a bit more when it gets wind (no pun intended) of this series of blog posts.
Secondly, given the interpretation CFAF has applied to the cases, it has pretty much zero credibility in "deeming" certain opinions "with Criminal," whatever either of those things are supposed to mean.
Thirdly, in many instances, the opinions "deemed w/ Criminal" contain broad, almost philosophical discussions on certain constitutional questions or, in two cases CFAF suggests should be added to the analysis as "deemed w/ Criminal," identical dissents by Justice Butler to questions of statutory construction related to Wisconsin's Truth in Sentencing laws, which have absolutely nothing to do with convictions at all, and which is why they don't appear on Justice Butler's list of convictions.
Fourthly, and this is the best, CFAF has removed the numbers that show how many convictions each case arose from initially, which are the whole point of the exercise, and what make Butler's figures more accurate, more reliable, and more directly pertinent to the heart of each criminal case: the number of convictions.
Scammy scamming scammers
Why did CFAF remove those figures? I can think of at least two reasons. The first is that CFAF didn't know what they meant. This wouldn't be surprising, because ace investigative reporter McBride didn't know what they meant either. What makes me say this? Well, for one thing, these two breathless statements delivered by McBride on March 18:
McBride then goes on to ramble pointlessly about a number of cases that aren't on the list of 62, despite the fact that, in the meantime, the Butler campaign had released the revised list of 70 cases, which contains all the cases McBride is wondering about (and, natch, taking advantage of the occasion to call Justice Butler a liar, and so forth).
Even when McBride did get her mitts on the revised list, she still has no clue what all the little (0:1)'s mean. What are they?! Oh never mind. Butler's a liar!
A routine traffic stop
Another reason why CFAF may have removed the numbers is that they did know what they meant, but they removed them so they could scam, scam, and scam some more. Because, as I mentioned in Part 1 of this series, where a case is numbered, for example, (2:1), that means there were three convictions and Butler voted to affirm two of the convictions but reverse one.
And then Butler could go on, in his typically incisive and rigorously logical way, to break down each of the four statutory elements of the conviction he wanted to reverse and argue, quite brilliantly in many cases, why the conviction couldn't stand, not because the United States Constitution protects "criminals," but because it protects ALL AMERICANS and if other Americans were subjected to the rule announced by the majority, then probably even CONSERVATIVE REPUBLICAN FAMILY VALUES PEOPLE might be troubled..
Not only that, but of those three convictions, maybe the two Butler affirmed were the two serious ones, like maybe a dope possession and a resisting arrest, but the one he wanted to reverse was a relatively piddling obstruction charge, and maybe even that charge was so slight and questionable, it was crying out for a closer look.
And, even then, Butler might look at those four statutory elements and agree that the State proved the first two no problem, but faltered on the third, and explain in great detail why, with constant references, naturally, to the requirements of the Constitution.
Cheesehead, reasonably suspicious
Well, yeah, Mr. tenant, you could say, Justice Butler might do that. But did he actually do that? And the answer is, yes, that's exactly what he did, in a case called State v. Young, in which Butler even poses the following question for the ages: "Would wearing a cheesehead provide a sufficient basis for a lawful stop in another state?"
And what, pray tell, did CFAF do with State v. Young? As should be painfully obvious by now, CFAF "deemed w/ Criminal." 100% of Young, "deemed w/ Criminal." That, my dear friends, is yet another example of CFAF's scammy scamming scammery. And there are more to come.
Please don't forget also that Mike Gableman, who apparently is a "candidate" to replace Justice Butler, was relying on that sort of garbage when he started — and continued — to repeat CFAF's fatuous and misleading data mining.
But I must go, for now. Let me say something on a personal level at this point. I must really be starting to sound like a cheerleader for Justice Butler. That's because I'm becoming one. I have read a lot of court opinions over the last several years, and lately I have been reading a lot of opinions by Justice Butler, many that I had not read before. And let me tell you. They are damn good. We are extremely fortunate to have this man on our Supreme Court. Seriously.
Next, we'll start getting into the numbers, and a few more cases.
To part 3 ...
As I pointed out in Part 1, the designation "pro-criminal" is a fundamental absurdity. Nonetheless undeterred by any such self-imposed absurdism, CFAF has most recently attempted to justify its "60% pro-criminal" figure by producing its own list of Wisconsin Supreme Court decisions, beside the names of which appear either nothing or the designation "CFAF deems w/ Criminal." In other words, CFAF "deems" that in such and such a case, Justice Butler sided "with" his buddies, the criminals.
Hmm. This list looks mighty familiar, I must say. Wait a minute ... could it be? Yes! It's the same list that Jessica McBride reproduced at her "special election edition" blog on Tuesday, March 18. It's the exact same list of cases, numbered from 1. to 62. in the exact same order and the same list that McBride says is "the actual list provided to the media by Butler." CFAF is actually using Butler's own list, those wacky scamps!
But hang on then, Mr. tenant, couldn't it be a coincidence? After all, you godless evilutionists are fond of claiming that this magnificently ordered universe of ours came about by "pure random chance," why couldn't have CFAF produced this list before Butler put his together, and it was pure coincidence that Butler came up with the same list of cases! Aha! I've got you now, Mr. tenant!
Only one problem: CFAF's list has the identical typo in case 10., State v. Mayo, 2005AP1592-CR. The correct docket number is 2004AP1592. This is Butler's list, the preliminary draft copy that got out before Butler's revised list of 70 cases. How do you like them apples?
Wall to wall buffoonery
The continually emergent comedy inheres in four aspects.
CFAF and its little helper Jessica McBride wants you to differ from Butler's analysis, but it wants you to differ using the Butler campaign's own research and documents. Isn't that something.
Apparently CFAF couldn't even come up with its own list of cases upon which to support its "60% pro-criminal" figure. That tells me it never had one. Which tells me further that CFAF produced the figure from its collective sphincter, which I really hope tightens a bit more when it gets wind (no pun intended) of this series of blog posts.
Secondly, given the interpretation CFAF has applied to the cases, it has pretty much zero credibility in "deeming" certain opinions "with Criminal," whatever either of those things are supposed to mean.
Thirdly, in many instances, the opinions "deemed w/ Criminal" contain broad, almost philosophical discussions on certain constitutional questions or, in two cases CFAF suggests should be added to the analysis as "deemed w/ Criminal," identical dissents by Justice Butler to questions of statutory construction related to Wisconsin's Truth in Sentencing laws, which have absolutely nothing to do with convictions at all, and which is why they don't appear on Justice Butler's list of convictions.
Fourthly, and this is the best, CFAF has removed the numbers that show how many convictions each case arose from initially, which are the whole point of the exercise, and what make Butler's figures more accurate, more reliable, and more directly pertinent to the heart of each criminal case: the number of convictions.
Scammy scamming scammers
Why did CFAF remove those figures? I can think of at least two reasons. The first is that CFAF didn't know what they meant. This wouldn't be surprising, because ace investigative reporter McBride didn't know what they meant either. What makes me say this? Well, for one thing, these two breathless statements delivered by McBride on March 18:
Butler’s 75% figure is based on outright inaccuracies in the facts and law.Next McBride retreats from the boldface to submit the following query, in a strange combination of breathlessness and puzzlement:
But how is Butler coming up with his numbers?She could have asked, I suppose, but since when were investigative reporters in the business of asking questions? That's just crazy talk! Who knows or cares what in the world these numbers mean, the main thing is, they're WRONG WRONG WRONG!!!1 Whatever they are.
McBride then goes on to ramble pointlessly about a number of cases that aren't on the list of 62, despite the fact that, in the meantime, the Butler campaign had released the revised list of 70 cases, which contains all the cases McBride is wondering about (and, natch, taking advantage of the occasion to call Justice Butler a liar, and so forth).
Even when McBride did get her mitts on the revised list, she still has no clue what all the little (0:1)'s mean. What are they?! Oh never mind. Butler's a liar!
A routine traffic stop
Another reason why CFAF may have removed the numbers is that they did know what they meant, but they removed them so they could scam, scam, and scam some more. Because, as I mentioned in Part 1 of this series, where a case is numbered, for example, (2:1), that means there were three convictions and Butler voted to affirm two of the convictions but reverse one.
And then Butler could go on, in his typically incisive and rigorously logical way, to break down each of the four statutory elements of the conviction he wanted to reverse and argue, quite brilliantly in many cases, why the conviction couldn't stand, not because the United States Constitution protects "criminals," but because it protects ALL AMERICANS and if other Americans were subjected to the rule announced by the majority, then probably even CONSERVATIVE REPUBLICAN FAMILY VALUES PEOPLE might be troubled..
Not only that, but of those three convictions, maybe the two Butler affirmed were the two serious ones, like maybe a dope possession and a resisting arrest, but the one he wanted to reverse was a relatively piddling obstruction charge, and maybe even that charge was so slight and questionable, it was crying out for a closer look.
And, even then, Butler might look at those four statutory elements and agree that the State proved the first two no problem, but faltered on the third, and explain in great detail why, with constant references, naturally, to the requirements of the Constitution.
Cheesehead, reasonably suspicious
Well, yeah, Mr. tenant, you could say, Justice Butler might do that. But did he actually do that? And the answer is, yes, that's exactly what he did, in a case called State v. Young, in which Butler even poses the following question for the ages: "Would wearing a cheesehead provide a sufficient basis for a lawful stop in another state?"
And what, pray tell, did CFAF do with State v. Young? As should be painfully obvious by now, CFAF "deemed w/ Criminal." 100% of Young, "deemed w/ Criminal." That, my dear friends, is yet another example of CFAF's scammy scamming scammery. And there are more to come.
Please don't forget also that Mike Gableman, who apparently is a "candidate" to replace Justice Butler, was relying on that sort of garbage when he started — and continued — to repeat CFAF's fatuous and misleading data mining.
But I must go, for now. Let me say something on a personal level at this point. I must really be starting to sound like a cheerleader for Justice Butler. That's because I'm becoming one. I have read a lot of court opinions over the last several years, and lately I have been reading a lot of opinions by Justice Butler, many that I had not read before. And let me tell you. They are damn good. We are extremely fortunate to have this man on our Supreme Court. Seriously.
Next, we'll start getting into the numbers, and a few more cases.
To part 3 ...
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 ...
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 ...
Mmm mmm good
Mmm mmm goodQuick hit: Another case CFAF claims as "pro-criminal" is State v. Campbell. This is also another case where Mike Gableman relies on CFAF's characterization to tar Justice Louis Butler with the false charge that he "sides with criminals 60% of the time."
That's what State v. Campbell is
Mmm mmm good.
Justice David Prosser, writing for the majority, AFFIRMS ALL THREE CRIMINAL CONVICTIONS before the court. Butler writes a separate opinion, part concurrence, part dissent. Here is the concurring portion of Butler's opinion, in its entirety:
I join that portion of the majority opinion which affirms the judgments of conviction in this case.Mike Gableman said he was unaware of any study that contradicted CFAF's claims. Was he unaware of State v. Campbell itself? Because it's been floating around since July 12, 2006.
But Gableman is the right man for Wisconsin's highest court. So we're told! I guess I'm not quite buying it. And neither should you.
ttfn
UPDATE:
Fair and balanced newshound Jessica McBride also puts Campbell in the "pro-criminal" column. Why? Because immediately after AFFIRMING ALL THREE CRIMINAL CONVICTIONS, Butler wrote "passionately."
Er, what? Wrote what "passionately"?
I kid you not. McBride admits her "judgment call" to portray State v. Campbell as "pro-criminal" (did I mention that Butler AFFIRMED ALL THREE CRIMINAL CONVICTIONS?) may be "debatable."
"Don't conflate CFAF with McBride." — Rick Esenberg, 3/28/08
You can't make this shit up, folks.
Hold the Mayo
While I'm toiling at a larger project, I can't resist interrupting to provide the following noteworthy and significant tidbit gleaned from the same. Some time ago, a group of politically dedicated conservative Republicans started circulating the demonstrable myth that Wisconsin Supreme Court Justice Louis Butler has "sided with criminals 60% of the time," whatever the hell that means.
(Recall that the most notable person who doesn't know what the hell it means is Burnett County Judge Michael Gableman, who actually said so out loud several days ago, which nevertheless hasn't stopped him from repeating the myth.)
One of the Wisconsin Supreme Court decisions that the conservative GOP outfit, the Coalition for America's Families (CFAF), portrays as "pro-criminal" is State v. Mayo. In Mayo, Butler joined the majority to directly and unequivocally AFFIRM THREE CRIMINAL CONVICTIONS.
The case reached the Supreme Court because Mayo, among other things, argued that the performance of his defense counsel at trial was ineffective and that that ineffectiveness contributed to prejudicing the jury and therefore Mayo was denied a fair trial.
The rights to effective defense counsel and to a fair trial are explicitly guaranteed by the United States Constitution. They are not a "needless technicality," as Gableman's bagmen at Wisconsin Manufacturers & Commerce would say.
In addition to joining the majority in full (together with the court's most "conservative" members), Butler wrote an extremely thoughtful concurring opinion discussing in detail specific aspects of the trial counsel's performance and the extent to which it may have prejudiced the jury beyond that which the majority opinion acknowledged.
Butler concluded,
Second, and even more importantly for the present circumstances, since Butler has been relentlessly attacked for imposing his own personal views on the court's decisions, especially by Gableman himself, one could hardly find a more effective demonstration of the falsehood of such claims.
Yet CFAF, along with Mike Gableman, are portraying Butler's role in Mayo as "pro-criminal." Since the foregoing constitutional rights are enjoyed by all Americans, what Gableman is essentially telling you, apart from making an absolute and shameless mockery of the Constitution, is that you, all Americans, are criminals.
I can't imagine how anyone with even the slightest understanding of the American system of democracy could read Butler's opinion in Mayo and conclude that it is "pro-criminal." Yet here we have Mike Gableman claiming that it is. And yes, that's the same Mike Gableman who is presenting himself as a suitable candidate to replace Justice Butler on the Wisconsin Supreme Court.
Un-frickin'-believable and furthermore, disgraceful.
ttfn
(Recall that the most notable person who doesn't know what the hell it means is Burnett County Judge Michael Gableman, who actually said so out loud several days ago, which nevertheless hasn't stopped him from repeating the myth.)
One of the Wisconsin Supreme Court decisions that the conservative GOP outfit, the Coalition for America's Families (CFAF), portrays as "pro-criminal" is State v. Mayo. In Mayo, Butler joined the majority to directly and unequivocally AFFIRM THREE CRIMINAL CONVICTIONS.
The case reached the Supreme Court because Mayo, among other things, argued that the performance of his defense counsel at trial was ineffective and that that ineffectiveness contributed to prejudicing the jury and therefore Mayo was denied a fair trial.
The rights to effective defense counsel and to a fair trial are explicitly guaranteed by the United States Constitution. They are not a "needless technicality," as Gableman's bagmen at Wisconsin Manufacturers & Commerce would say.
In addition to joining the majority in full (together with the court's most "conservative" members), Butler wrote an extremely thoughtful concurring opinion discussing in detail specific aspects of the trial counsel's performance and the extent to which it may have prejudiced the jury beyond that which the majority opinion acknowledged.
Butler concluded,
The net effect of trial counsel's failure to investigate is that Mayo was ultimately deprived of any opportunity to mount a credible defense. In my view, that amounts to prejudice. Yet I agree with the majority that the prejudice incurred does not meet the standard required for a new trial under Strickland [a landmark United States Supreme Court case that bound the majority]. The result in this case, while legally correct, should disturb us all.Butler's concurring opinion is significant for at least two reasons. First, it's a superb example of his dedication to the bedrock principles of justice embodied in the Constitution.
Second, and even more importantly for the present circumstances, since Butler has been relentlessly attacked for imposing his own personal views on the court's decisions, especially by Gableman himself, one could hardly find a more effective demonstration of the falsehood of such claims.
Yet CFAF, along with Mike Gableman, are portraying Butler's role in Mayo as "pro-criminal." Since the foregoing constitutional rights are enjoyed by all Americans, what Gableman is essentially telling you, apart from making an absolute and shameless mockery of the Constitution, is that you, all Americans, are criminals.
I can't imagine how anyone with even the slightest understanding of the American system of democracy could read Butler's opinion in Mayo and conclude that it is "pro-criminal." Yet here we have Mike Gableman claiming that it is. And yes, that's the same Mike Gableman who is presenting himself as a suitable candidate to replace Justice Butler on the Wisconsin Supreme Court.
Un-frickin'-believable and furthermore, disgraceful.
ttfn
March 24, 2008
Gideon notwithstanding
The popular and beloved mayor-designate of the Milwaukee County Courthouse and learned counsel Mike Plaisted explains a nuance of law to a certain Mr. Owen Robinson of West Bend, WI:
Owen's frivolous GOP talking point
Interesting!
Owen's frivolous GOP talking point
Interesting!
No joy in Titletown for Gableman
Fellow MCTS rider, nascent attorney, and must-read Milwaukee blogger Sam Sarver reports from his hometown, Green Bay, WI on the arch-conservative Green Bay Press-Gazette's plangent endorsement of Wisconsin Supreme Court Justice Louis Butler:
Gableman can't make his case
That's not Mr. Sarver's headline (he's got a pro wrestling theme going on now perhaps in preparation for the forthcoming hockey fight theme), but it's a fair distillation of the Press-Gazette's rationale. And it's essentially been mine since December, except nobody's ever accused me of being a conservative Republican.
At least not today, and today is not a good day to be a conservative Republican, especially when your name is Mike Gableman.
Gableman can't make his case
That's not Mr. Sarver's headline (he's got a pro wrestling theme going on now perhaps in preparation for the forthcoming hockey fight theme), but it's a fair distillation of the Press-Gazette's rationale. And it's essentially been mine since December, except nobody's ever accused me of being a conservative Republican.
At least not today, and today is not a good day to be a conservative Republican, especially when your name is Mike Gableman.
Themes from The Blogfather
Sung to the tune of Speak Softly, Love:
As I mentioned yesterday, Marquette Law Professor Rick Esenberg invited us all to view his appearance on Milwaukee squawker Charlie Sykes's teevee program, Sunday INCITE! It's with great regret I now announce that I couldn't stand more than nine minutes of the show and switched back to the eminently more edifying Bret Michaels: Rock of Love.
Not because of Esenberg, mind you, although his efforts to equate the campaign of Wisconsin Supreme Court Justice Louis Butler with that of Burnett County Judge Mike Gableman nearly made me spit my juice all over the copy of The Anarchist Cookbook* on my coffee table. More on that in another post.
Charles J. Sykes, in short, is a buffoon, a performing ape. During the mercifully brief discussion of the Supreme Court election, Sykes managed to refer to Gableman as "Michael Gableman" or "Mike Gableman." But Butler may only be "Loophole Louie." Charming.
First of all, Louis is pronounced like "Lewis." Justice Butler earned the nickname during his days as a State public defender. It's a lawyers' joke, an affectionate moniker containing a playfully needling element. More importantly, it's a compliment to Butler's skills as an attorney, which further contributes to Sykes's inadvertent clownishness that he insists on using it.
Years ago, when scientists, notably the astronomer Edwin Hubble, first observed that the universe is expanding, the resultant set of inferences earned the derision of Fred Hoyle, a British physicist who scornfully dubbed them the "Big Bang" theory. Bemused astronomers, knowing full well that Hoyle's characterization was meant as a put-down, adopted the term and now, of course, Hoyle has been decidedly proven wrong.
A similar principle inheres in Butler's ancient nickname which he earned, incidentally, 25 years ago. Sykes simply needs to get over it. Either that or put up some evidence that Butler has adjudicated like a public defender during his 16 years as a judge (longer than Gableman has been a lawyer), which is quite obviously why Sykes continues to use the nickname. Needless to say, Sykes, nor anyone else, is going to come up with that evidence.
However, since getting over it requires the condition precedent of Sykes getting over himself, it's not going to happen. In the meantime, everybody should just point and laugh at him, because obviously that's what he wants. What other explanation can there be?
Of course there are many other reasons to point and laugh at Sykes. He provided yet another yesterday, responding to an item by Daniel Bice in the Milwaukee Journal-Sentinel. It seems that a lawyer called John O'Connor, who is involved in a case currently before the State Supreme Court, recently donated to Butler's campaign.
Bice thinks this is "a funny thing," partly because Justice Butler recently took the extraordinary step of disclosing the information where campaign contributions came from parties with business before the court. It's funny, alright, but not for the reason Bice is implying. It's funny because of why O'Connor was moved to make the contributions:
Incidentally, Gableman's campaign website, under "Endorsements," still looks like this, as of this morning, despite DA Bauer's letter having appeared in print five days ago:
Sykes's response to Bice's item is also funny: "Justice for sale?" is the headline at Sykes's "blog," without the slightest hint of evidence as to whether the question is even called for, let alone the clear suggestion of impropriety on the part of Justice Butler. That headline, by the way, is Sykes's sole contribution to the discussion. Despite this, Sykes has earned his own nickname, "the blogfather," from some of his fawning acolytes on the right.
Why this is is a bit of a mystery, since Sykes's blog contains almost entirely copy-and-paste jobs from other blogs and the occasional YouTube clip of scantily-clad, booty-shaking females. (If Sykes does provide any meaningful public service at all, it's those.)
If you aren't pointing and laughing yet, I'll leave you with an example of Sykes's legal acumen, the substance of which practically precludes him from commenting on this Supreme Court race at all, except that would deprive us of grist for the comedy mill, and that's not such a good thing.
Some time ago at this blog, I discussed in some detail the case of State v. Knapp, which at one point was a centerpiece of the Gableman campaign. It appears to have been long since abandoned, perhaps because portrayals of the case by Gableman and his supporters were so embarrassingly misbegotten and just plain wrong.
In any event, Justice Butler himself discusses State v. Knapp during his interview with the Journal-Sentinel editorial board, which can be viewed by following this link. (It's excellent, by the way.)
I can't say whether J-S editorial board member Patrick McIlheran nodded off during that discussion too but if he did, he missed some good stuff. I say that because Butler's emphasis on the pertinent constitutional questions raised in Knapp was an almost direct reading of my original blog post. I flatter myself unwarrantedly to suggest that Justice Butler reads this blog — which I doubt — because, obviously, he wrote the opinion in Knapp.
Anyway, here's what Sykes had to say about Knapp (he does write his own stuff occasionally, in between shouting on the radio, just not at his blog):
Charlie Sykes, I'm told, is actually taken seriously among a certain local demographic, which is as much a mystery to me as was initially the red-shift of galaxies to Edwin Hubble. Hubble eventually figured it out, but I remain at a loss to explain Sykes's apparent popularity, aside from as, of course, an occasionally entertaining performing primate.
* Note to the DHS: That's a joke; living as I do a short skip from Taco Bell, I have no need for any cookbooks at all.
Squawk loudly, Sykes, I hold my sides before you speak— with sincere apologies to Larry Kusic and Nino Rota
We hear your words, the violent shakes reaching their peak
You're in your world
We rest assured
Sharing hip musings and the cant of Esenberg
As I mentioned yesterday, Marquette Law Professor Rick Esenberg invited us all to view his appearance on Milwaukee squawker Charlie Sykes's teevee program, Sunday INCITE! It's with great regret I now announce that I couldn't stand more than nine minutes of the show and switched back to the eminently more edifying Bret Michaels: Rock of Love.
Not because of Esenberg, mind you, although his efforts to equate the campaign of Wisconsin Supreme Court Justice Louis Butler with that of Burnett County Judge Mike Gableman nearly made me spit my juice all over the copy of The Anarchist Cookbook* on my coffee table. More on that in another post.
Charles J. Sykes, in short, is a buffoon, a performing ape. During the mercifully brief discussion of the Supreme Court election, Sykes managed to refer to Gableman as "Michael Gableman" or "Mike Gableman." But Butler may only be "Loophole Louie." Charming.
First of all, Louis is pronounced like "Lewis." Justice Butler earned the nickname during his days as a State public defender. It's a lawyers' joke, an affectionate moniker containing a playfully needling element. More importantly, it's a compliment to Butler's skills as an attorney, which further contributes to Sykes's inadvertent clownishness that he insists on using it.
Years ago, when scientists, notably the astronomer Edwin Hubble, first observed that the universe is expanding, the resultant set of inferences earned the derision of Fred Hoyle, a British physicist who scornfully dubbed them the "Big Bang" theory. Bemused astronomers, knowing full well that Hoyle's characterization was meant as a put-down, adopted the term and now, of course, Hoyle has been decidedly proven wrong.
A similar principle inheres in Butler's ancient nickname which he earned, incidentally, 25 years ago. Sykes simply needs to get over it. Either that or put up some evidence that Butler has adjudicated like a public defender during his 16 years as a judge (longer than Gableman has been a lawyer), which is quite obviously why Sykes continues to use the nickname. Needless to say, Sykes, nor anyone else, is going to come up with that evidence.
However, since getting over it requires the condition precedent of Sykes getting over himself, it's not going to happen. In the meantime, everybody should just point and laugh at him, because obviously that's what he wants. What other explanation can there be?
Of course there are many other reasons to point and laugh at Sykes. He provided yet another yesterday, responding to an item by Daniel Bice in the Milwaukee Journal-Sentinel. It seems that a lawyer called John O'Connor, who is involved in a case currently before the State Supreme Court, recently donated to Butler's campaign.
Bice thinks this is "a funny thing," partly because Justice Butler recently took the extraordinary step of disclosing the information where campaign contributions came from parties with business before the court. It's funny, alright, but not for the reason Bice is implying. It's funny because of why O'Connor was moved to make the contributions:
O'Connor said the donations had nothing to do with his case. He said he gave after pro-Gableman ads "pissed me off beyond description."Who can blame him for that? It seems like an appropriate response to me, especially in light of our good friend, Dodge County District Attorney Steven G. Bauer's manifestly well considered decision to withdraw his endorsement for Mike Gableman who, as far as I'm concerned, can continue pissing lawyers off to his heart's content, if these are the effects.
Incidentally, Gableman's campaign website, under "Endorsements," still looks like this, as of this morning, despite DA Bauer's letter having appeared in print five days ago:
Sykes's response to Bice's item is also funny: "Justice for sale?" is the headline at Sykes's "blog," without the slightest hint of evidence as to whether the question is even called for, let alone the clear suggestion of impropriety on the part of Justice Butler. That headline, by the way, is Sykes's sole contribution to the discussion. Despite this, Sykes has earned his own nickname, "the blogfather," from some of his fawning acolytes on the right.
Why this is is a bit of a mystery, since Sykes's blog contains almost entirely copy-and-paste jobs from other blogs and the occasional YouTube clip of scantily-clad, booty-shaking females. (If Sykes does provide any meaningful public service at all, it's those.)
If you aren't pointing and laughing yet, I'll leave you with an example of Sykes's legal acumen, the substance of which practically precludes him from commenting on this Supreme Court race at all, except that would deprive us of grist for the comedy mill, and that's not such a good thing.
Some time ago at this blog, I discussed in some detail the case of State v. Knapp, which at one point was a centerpiece of the Gableman campaign. It appears to have been long since abandoned, perhaps because portrayals of the case by Gableman and his supporters were so embarrassingly misbegotten and just plain wrong.
In any event, Justice Butler himself discusses State v. Knapp during his interview with the Journal-Sentinel editorial board, which can be viewed by following this link. (It's excellent, by the way.)
I can't say whether J-S editorial board member Patrick McIlheran nodded off during that discussion too but if he did, he missed some good stuff. I say that because Butler's emphasis on the pertinent constitutional questions raised in Knapp was an almost direct reading of my original blog post. I flatter myself unwarrantedly to suggest that Justice Butler reads this blog — which I doubt — because, obviously, he wrote the opinion in Knapp.
Anyway, here's what Sykes had to say about Knapp (he does write his own stuff occasionally, in between shouting on the radio, just not at his blog):
What stunned the dissenters and many court watchers, however, was the court’s decision to ignore the specific decision of the U.S. Supreme Court in the case before it.Now this is beyond merely comical, it's demonstrably idiotic, and if you want to know why, go and read my original post. Or, obviously, watch the Butler interview (which you should do anyway).
Charlie Sykes, I'm told, is actually taken seriously among a certain local demographic, which is as much a mystery to me as was initially the red-shift of galaxies to Edwin Hubble. Hubble eventually figured it out, but I remain at a loss to explain Sykes's apparent popularity, aside from as, of course, an occasionally entertaining performing primate.
* Note to the DHS: That's a joke; living as I do a short skip from Taco Bell, I have no need for any cookbooks at all.
March 23, 2008
McIlheran: So, so busted
Yesterday morning I pasted a copy of this post into Milwaukee Journal-Sentinel editorial board member Patrick McIlheran's blog comments. McIlheran, knowing full well — as I didn't — that his blog does not accept even the simplest HTML code, not even for italics, published the comment anyway, without taking the 30 seconds it might have cost him to at least delete the code for the links.
The result is basically unreadable. Then McIlheran "replied," if you can call it that, with a bizarre stream of contradictions and paranoiac fantasy. Perhaps McIlheran didn't appreciate my deliberate language, all of which is supported by previous posts at this here blog and elsewhere (those were the links in my comment to McIlheran's blog).
But if that's the case, then McIlheran doesn't come across too many letters to the editor, which is odd, because he's a member of the Journal-Sentinel's editorial board. Nor did his reply, incidentally, even remotely attempt to engage any of the substantive points I made and supported. Whatever.
This morning I noticed that, in his capacity as editorial board member, he had joined his colleagues for a fairly extensive interview with Wisconsin Supreme Court Justice Louis Butler which, according to the time stamps on the video, took place on Tuesday, March 13.
Since that time and over the last few days, a mini-controversy has erupted over Jessica McBride's inept scheme to portray Justice Butler as a liar (the inept scheme is even ineptly executed, but she calls him a liar anyway). Then, on Friday, McIlheran posted a triumphalist link to McBride's laughable hit piece, quoting freely from it as if it was somehow related to the data she was failing to debunk.
Having posted on the question a number of times, I finally decided to check into the numbers that the Butler campaign was giving out, and determine exactly what criteria the Butler campaign was using, and how the campaign's figure of 70% (75% has also been mentioned) matched up with those criteria, or that criterion, as it turns out.
As I noted last evening, the percentage is based on criminal convictions, and whether decisions of the Wisconsin Supreme Court had reversed those convictions. This, one would think, would be precisely the first order of business for any journalist with a mind to question the final figure: find out what it means. Yet neither McBride nor McIlheran did any such thing, in their obvious eagerness to defame Justice Butler.
But McIlheran has himself to thank, ultimately, because to tell the truth, it was McIlheran's annoying treatment of and response to my comment yesterday that motivated me to take the (not a whole hell of a lot of) time to see what the final number meant, and that it's based on convictions, and that the 70% figure checks out to within less than a percentage point. (McBride spotted a typo.)
Well, guess what? I'll let Justice Butler speak, from during his March 13 interview* with the Journal-Sentinel editorial board, which includes, as I said, none other than Patrick McIlheran:
Now, setting aside all the other myriad skepticisms that should immediately spring to mind when reading an alleged work of journalism — especially one produced by the outlandishly partisan Jessica McBride — containing the deliberately inflammatory language that McBride's does, and seeing that it was questioning Butler's quoted percentage, and noticing that nowhere in either of McBride's two pieces does she explain how the Butler campaign came about its number and, only days after having sat across a table listening to Butler himself explain how the figure came about ...
Well, you can figure out the rest. So, so busted. Yet McIlheran took umbrage at my charges of sloppy journalism. How's that for a laugh.
A damn good laugh, I reckon.
* Link opens a video player.
eta: This comment was left on McIlheran's blog Sunday evening (containing no HTML commands):
The result is basically unreadable. Then McIlheran "replied," if you can call it that, with a bizarre stream of contradictions and paranoiac fantasy. Perhaps McIlheran didn't appreciate my deliberate language, all of which is supported by previous posts at this here blog and elsewhere (those were the links in my comment to McIlheran's blog).
But if that's the case, then McIlheran doesn't come across too many letters to the editor, which is odd, because he's a member of the Journal-Sentinel's editorial board. Nor did his reply, incidentally, even remotely attempt to engage any of the substantive points I made and supported. Whatever.
This morning I noticed that, in his capacity as editorial board member, he had joined his colleagues for a fairly extensive interview with Wisconsin Supreme Court Justice Louis Butler which, according to the time stamps on the video, took place on Tuesday, March 13.
Since that time and over the last few days, a mini-controversy has erupted over Jessica McBride's inept scheme to portray Justice Butler as a liar (the inept scheme is even ineptly executed, but she calls him a liar anyway). Then, on Friday, McIlheran posted a triumphalist link to McBride's laughable hit piece, quoting freely from it as if it was somehow related to the data she was failing to debunk.
Having posted on the question a number of times, I finally decided to check into the numbers that the Butler campaign was giving out, and determine exactly what criteria the Butler campaign was using, and how the campaign's figure of 70% (75% has also been mentioned) matched up with those criteria, or that criterion, as it turns out.
As I noted last evening, the percentage is based on criminal convictions, and whether decisions of the Wisconsin Supreme Court had reversed those convictions. This, one would think, would be precisely the first order of business for any journalist with a mind to question the final figure: find out what it means. Yet neither McBride nor McIlheran did any such thing, in their obvious eagerness to defame Justice Butler.
But McIlheran has himself to thank, ultimately, because to tell the truth, it was McIlheran's annoying treatment of and response to my comment yesterday that motivated me to take the (not a whole hell of a lot of) time to see what the final number meant, and that it's based on convictions, and that the 70% figure checks out to within less than a percentage point. (McBride spotted a typo.)
Well, guess what? I'll let Justice Butler speak, from during his March 13 interview* with the Journal-Sentinel editorial board, which includes, as I said, none other than Patrick McIlheran:
When we got those figures that were being thrown out there that 60% of the time we are siding with criminal defendants ... okay ... I wasn't sure where that comes from, I'm still not sure where that comes from. But rather than react, we went back and we did an analysis of the cases. ... Now, one analysis was real easy. If you factor in all the cases including cases involving petitions for review that come before the court, I voted to uphold convictions 97% of the time. It was 3% ruling against convictions in [those cases].Yes, that's right, Patrick McIlheran sat across a boardroom table from Louis Butler and, complete with the prefatory remarks quoted above (and then some) listened to Butler say the word "conviction" or its synonym, "count," eight times in the course of explaining the percentage figure. Eight times. With emphasis (watch the video).
But we'll step back ... and talk about the cases actually accepted by the court. If you go through — and we've done this, and I challenge everyone to do this — look at the cases count by count [conviction by conviction], count by count [conviction by conviction] we'll look at all the counts [convictions] that have come before the court, we'll look at all the cases that have come before the court. And what it shows is that I voted to uphold the convictions 75% of the time.
Now, setting aside all the other myriad skepticisms that should immediately spring to mind when reading an alleged work of journalism — especially one produced by the outlandishly partisan Jessica McBride — containing the deliberately inflammatory language that McBride's does, and seeing that it was questioning Butler's quoted percentage, and noticing that nowhere in either of McBride's two pieces does she explain how the Butler campaign came about its number and, only days after having sat across a table listening to Butler himself explain how the figure came about ...
Well, you can figure out the rest. So, so busted. Yet McIlheran took umbrage at my charges of sloppy journalism. How's that for a laugh.
A damn good laugh, I reckon.
* Link opens a video player.
eta: This comment was left on McIlheran's blog Sunday evening (containing no HTML commands):
I played your numbers game for you, Mr. McIlheran. It also turns out that Justice Butler had previously explained the basis for the percentage in advance to you, when you were literally sitting across a table from him.
It's all on my blog. Go have a look.
My only question at this point, Mr. McIlheran, is: Are you going to give your apology to Justice Butler at least the same prominence that you gave McBride's hatchet job?
A bit of Sunday insight
Marquette Law Professor Rick Esenberg reminds us that he'll be appearing today on Sunday Incite, the morning show hosted by Milwaukee squawking head Charles J. Sykes. So I thought I'd rise at stupid o'clock just in case Prof. Esenberg decides to check in with his favorite blogger first, and just in case the topic of the Wisconsin Supreme Court presents itself to Sykes & Co.If both of those premises are satisfied, then perhaps Prof. Esenberg might be kind enough to keep the following thoughts in mind as he engages the said topic. I respect Prof. Esenberg, except he's got some decidedly unsavory friends. But whatever. Here's what he wrote about your humble correspondent last night:
[illusory tenant] wants to make [Louis Butler] look "good" in the sense of not [favoring criminal defendants].Not exactly. Louis Butler does not need me, or anyone else, to make him look good. I entertain no such self-serving presumptions. In fact, it was never even my intent at all to follow this election campaign as closely as I have. However, beginning in November, when Burnett County Judge Mike Gableman first started circulating his facile misrepresentations of the law, I began to take notice.
As for "favoring criminal defendants," that whole idea, which Gableman and his deep pocketed supporters are attempting to make the central issue over — of all things — a seat on the Wisconsin Supreme Court, is itself facile and misleading.
It may be a slogan suitable to a campaign for district attorney, but practically ridiculous in the present context, considering the functions of the State's highest appellate court, which outright rejects the overwhelming majority of criminal appeals in the first place.
And Esenberg knows as well as anyone just how facile and misleading it is. The Gableman campaign and its surrogates are orchestrating a farce of the lowest order on the people of Wisconsin, if not the country: witness the attention this campaign is lately getting from Newsweek.
Look at Wisconsin Manufacturers & Commerce, Gableman's biggest supporter in terms of resources, which actually has the unmitigated temerity to portray the Confrontation Clause of the Sixth Amendment as a "needless technicality." How is one to react to that? With a combination of riotous laughter and abject horror, I should think. A provision of the Bill of Rights ... a needless technicality.
I don't know about Esenberg, who, let us not forget, has lent his considerable acumen to the WMC's campaign against Louis Butler, but I beg to differ. In my view, the U.S. Constitution is the product and expression of sheer political and legal genius, and it's practically impossible to overstate its importance.
I can barely believe my eyes, to see it reduced to a needless technicality. Every single person in this country should rightly be appalled at WMC's downright anti-American propaganda.
Let me also be clear in reiterating that this is a campaign against Louis Butler, and not a campaign in favor of Mike Gableman. Gableman, who has now had nearly six months to present himself and his ideas, remains essentially a cipher. We know very little about him. We have no idea whether he's even read a decision of the Wisconsin Supreme Court, let alone that he even understands what the job he's seeking entails.
In my considered opinion, the relatively little he has presented mitigates strongly against either proposition.
Have any of the anti-Butler forces even read Butler's dissent in State v. Jensen? It's a pretty impressive piece of work, by any standards, and tightly reasoned. Butler traces the history of the Confrontation Clause back to the 16th century, a reminder of the protections against the Crown that became embodied in the United States Constitution, the envy of the world. It's like reading the work of another famous son of Milwaukee, Chief Justice William H. Rehnquist of Shorewood High, the "historian" of the U.S. Supreme Court.
I read it a long time ago and as a matter of fact it was the subject of my very first post on this campaign back in December, discussing how Butler's approach exemplifies both narrow textualism and original intent, two doctrines of constitutional interpretation to which political conservatives normally proclaim undying devotion.
Now suddenly it's "needless technicalities"? How in the world can anybody take Wisconsin Manufacturers & Commerce seriously?
Please excuse my French, but just how fucking stupid do they think we are? I submit that we are far, far from stupid, and as such we need to summarily reject their disingenuous ploys, along with their obscure, bought-and-paid-for candidate, Mike Gableman.
Leave him be, where he can continue to protect the residents of Burnett County, and "preside over" their thousands of uncontested traffic tickets. Because he's clearly not ready for prime time.
Moreover, when the relatively conservative U.S. Supreme Court affirms and vindicates Justice Butler's Jensen dissent in Giles v. California later this year, it will be a proud day not only for Butler, but for all Wisconsinites. If you forget about it by then, fear not, I'll be sure to remind y'all.
As for Jessica McBride and her thoughtless enabler at the Milwaukee Journal-Sentinel, Patrick McIlheran, my criticism of them has been based in what is their demonstrably irresponsible journalism. Not only is it clear now that McBride didn't even understand the meaning of the numbers at the heart of the documents she has been working feverishly to defame Justice Butler with, but McIlheran didn't make the slightest effort to understand either.
Instead, they rushed headlong to announce their preordained conclusions, in this case, that a sitting Justice of the Wisconsin Supreme Court is a liar. Can the practice of alleged journalism get any lower? Maybe, but not by much.
One final thought. I have accused Gableman of deliberately misrepresenting the law. The reason for that is because I have no other choice. I have shown, on many occasions, with evidence, how he is misrepresenting the law. And I'm not done, either. So have others, most recently in the commentary concerning his utterly disgraceful television spot. That leaves the question of whether he is doing it deliberately or inadvertently.
If the latter, then Gableman is incompetent. That is, unworthy and unsuited to the position he seeks. By definition. But I am not calling him incompetent, for obvious reasons. Because I do know the law.
That leaves deliberate misrepresentation. And deliberate misrepresentation of the law is what Gableman and his supporters are up to, in their campaign to defame Louis Butler. It seems to me one of the reasons — perhaps the only reason — that the Gableman campaign is doing this is because he can't run on his own merits and that is because, compared to Louis Butler, he has very few.
Ultimately, whether deliberate — as opposed to inadvertent — misrepresentation of the law makes Gableman more or less unworthy or unsuitable for the Wisconsin Supreme Court is a pretty close call, I must say.
Is this really the individual that the people of Wisconsin should choose to install on the highest court in their State, thereby replacing someone who's been a judge longer than Gableman has been a lawyer? I should certainly hope not.
And while he'll probably never admit to it, I bet that — "in his heart," as they say — Esenberg agrees with much of the foregoing.
Happy Easter.
March 22, 2008
The "Butler list"
Here is the deal. In a press release dated 3/06/08, WIsconsin Supreme Court Justice Louis Butler's campaign communications director Erin Celello wrote:
Recall, Celello's statement was in rebuttal to the Coalition for America's Families claim that Butler "has sided with criminals nearly 60% of the time," whatever that means. ("Right-wing guy" investigative reporting into that figure has been hard to come by.)
The "Butler list" of 70 cases is all about convictions. That's why it contains numbers in parentheses, thus: (3:0). In such a case, there were three separate convictions on three separate charges. But "ruling in favor of a criminal appeal" does not necessarily mean that the conviction was reversed. In several of the 70 cases, the defendant won an appeal, but the conviction remained in place.
Now why somebody would expect the Butler campaign to score a conviction as reversed where there was no conviction reversed is anyone's guess. Maybe some "right-wing guy" has some insight into that as well. Then again, it's easier to just call a sitting justice of the Wisconsin Supreme Court a liar, I suppose. After all, that's what any self-respecting journalist would do.
So convictions are what this list is all about. If a defendant won an appeal, and on remand the circuit court reversed the conviction, that reversal cannot be laid at the feet of Justice Butler. For one thing, the Supreme Court is often addressing questions of constitutional infirmity that are only tangentially related to the conviction itself. And, for another thing, in many of these cases Butler sides with the most conservative members of the court.
Therefore, in those numerous instances, if Wisconsin Manufacturers & Commerce wants another David Prosser, they've already got one in Louis Butler.
As several other observers have pointed out, these "percentages" are a bit silly, because there are so many other factors involved. But the bottom line here is that the Butler campaign was responding — however tactically wise or not — with percentages of its own.
As the list stands, the percentage of convictions where Butler (whatever other members of the court he aligned himself with) did something other than reverse that conviction, stands at 70.89%. In every single specific case but one that Jessica McBride objects to on these grounds, the Supreme Court did not reverse a conviction.
Pursuant to that one case, State v. Raye, McBride does appear to have located a typo. Woooo. So if we move that conviction to the reversed column, the percentage changes to 69.23%.
As for her other objections, I'm not going to address any more of them at this point. If she wants to quibble over what some of the notations beside the docket numbers mean, then, fine. Or if she wants to complain about the accuracy of the wording on either side of the backslash in the header, then, fine.
But elsewhere she vacillates between demanding only cases with the -CR suffix and insisting that cases without the -CR suffix be added to the list, and I simply have no interest in untangling such incoherence.
69.23% is what the list shows. Of all the cases on that list, once the Supreme Court had finished its decision making process, 69.23% of the convictions remained intact. Then they went to other courts.
That's what the list means.
Justice Butler has voted to uphold criminal convictions in 97 percent of cases brought before the court. Even if you only select those criminal cases in which the Court has issued a written opinion, Justice Butler has ruled in favor of a criminal appeal only about one-third of the time, a rate not much different than any other member of the court.Emphases added. Notice: "upholding criminal convictions" vs. "ruling in favor of a criminal appeal." Those are obviously quite different issues. Everybody knows that, right?
Recall, Celello's statement was in rebuttal to the Coalition for America's Families claim that Butler "has sided with criminals nearly 60% of the time," whatever that means. ("Right-wing guy" investigative reporting into that figure has been hard to come by.)
The "Butler list" of 70 cases is all about convictions. That's why it contains numbers in parentheses, thus: (3:0). In such a case, there were three separate convictions on three separate charges. But "ruling in favor of a criminal appeal" does not necessarily mean that the conviction was reversed. In several of the 70 cases, the defendant won an appeal, but the conviction remained in place.
Now why somebody would expect the Butler campaign to score a conviction as reversed where there was no conviction reversed is anyone's guess. Maybe some "right-wing guy" has some insight into that as well. Then again, it's easier to just call a sitting justice of the Wisconsin Supreme Court a liar, I suppose. After all, that's what any self-respecting journalist would do.
So convictions are what this list is all about. If a defendant won an appeal, and on remand the circuit court reversed the conviction, that reversal cannot be laid at the feet of Justice Butler. For one thing, the Supreme Court is often addressing questions of constitutional infirmity that are only tangentially related to the conviction itself. And, for another thing, in many of these cases Butler sides with the most conservative members of the court.
Therefore, in those numerous instances, if Wisconsin Manufacturers & Commerce wants another David Prosser, they've already got one in Louis Butler.
As several other observers have pointed out, these "percentages" are a bit silly, because there are so many other factors involved. But the bottom line here is that the Butler campaign was responding — however tactically wise or not — with percentages of its own.
As the list stands, the percentage of convictions where Butler (whatever other members of the court he aligned himself with) did something other than reverse that conviction, stands at 70.89%. In every single specific case but one that Jessica McBride objects to on these grounds, the Supreme Court did not reverse a conviction.
Pursuant to that one case, State v. Raye, McBride does appear to have located a typo. Woooo. So if we move that conviction to the reversed column, the percentage changes to 69.23%.
As for her other objections, I'm not going to address any more of them at this point. If she wants to quibble over what some of the notations beside the docket numbers mean, then, fine. Or if she wants to complain about the accuracy of the wording on either side of the backslash in the header, then, fine.
But elsewhere she vacillates between demanding only cases with the -CR suffix and insisting that cases without the -CR suffix be added to the list, and I simply have no interest in untangling such incoherence.
69.23% is what the list shows. Of all the cases on that list, once the Supreme Court had finished its decision making process, 69.23% of the convictions remained intact. Then they went to other courts.
That's what the list means.
What the ?
"Right-wing guy" Patrick McIlheran "replies" to his love letter:
Did he even address anything I wrote?
And why is it that McIlheran's blog seems to recognize the most rudimentary of HTML code, but my comment turns up as a textually unintelligible dog's breakfast? He likely knew it would appear like that. His blog software cuts out entire words from sentences. Nice.
I don't know which is worse, him having no idea what I'm talking about or him not knowing what the hell he's talking about. Both propositions seem equally true, that much is clear enough.
In any event, the burden is on the said "right-wing guy" to prove Justice Butler is lying. Good luck with that, Paddy Mac.
Proof, Mr. Tenant: Try presenting some proof. That was McBride's point (and mine in pointing my readers toward her post) -- that the evidence suggests Butler is, um, prevaricating about his record. He's saying he's a tuff-on-the-crooks guy, and the numbers, embarrassingly for him, do not back him up.What in the world is McIlheran jabbering about? He wants proof and disproof? Disprove what numbers? He should be silenced? "Tantruming"? What?
Go on, disprove the numbers. No, you can't? All you can do is toss around a lot of tantruming about how you think I should be silenced and it hasn't happened yet? Ah, well. Tells me what I need to know about you.
Did he even address anything I wrote?
And why is it that McIlheran's blog seems to recognize the most rudimentary of HTML code, but my comment turns up as a textually unintelligible dog's breakfast? He likely knew it would appear like that. His blog software cuts out entire words from sentences. Nice.
I don't know which is worse, him having no idea what I'm talking about or him not knowing what the hell he's talking about. Both propositions seem equally true, that much is clear enough.
In any event, the burden is on the said "right-wing guy" to prove Justice Butler is lying. Good luck with that, Paddy Mac.
McIlheran: Case study in irresponsible journalism
The Milwaukee Journal-Sentinel's clownish "right-wing guy" Patrick McIlheran continues to shamelessly embarrass himself. Pointing once again to Jessica McBride's ludicrously misguided and uninformed "analysis" of some Wisconsin Supreme Court cases, McIlheran repeats McBride's utter falsehood that information provided by Justice Louis Butler's campaign is "riddled with legal errors."
As demonstrated yesterday, McBride's remarkably irresponsible charge is completely debunked. The "legal errors" McBride claims result from her determined, blinkered insistence that Justice Butler not make reference to the very cases that Burnett County Judge Michael Gableman has been using since November to attack Butler, a situation of which she is clearly unaware.
And McIlheran himself levels his own thoroughly unsupported charge, that Justice Butler "retains at least something of a soft spot for criminal defendants looking for a way off the hook." What an idiotic thing to say, not to mention compelling evidence that McIlheran hasn't the slightest clue about how judges approach cases. But this doesn't stop him.
Even though a further demonstration of McIlheran's risible cluelessness isn't required, he provides one anyway, by also linking to Rick Esenberg's latest post here. Esenberg not only confirms that McBride's hopeless attempt to exclude certain cases is totally wrong, but Atty. Bill Tyroler, writing in Esenberg's comments thread, eviscerates Esenberg's own purported methodology.
Setting aside the demonstrable truism that many of these cases' dispositions do not easily lend themselves to the often false dichotomy of categorization according to either "favoring criminals or law enforcement," Tyroler confirms something I had mentioned earlier: that even requests for review from lower courts of appeals decisions that the Wisconsin Supreme Court declines to accept may legitimately factor into these statistical compilations.
Even that obvious fact puzzles McBride.
And in an earlier Esenberg thread, commenter John Foust makes the salient observation that in many cases, the Supreme Court decisions say just as much — if not more — about errors made in the lower courts than they do about the reviewing court's reasoning, let alone that of some individual justice on that reviewing court.
Foust isn't a lawyer, yet he gets it. What's McIlheran's excuse? He has none. He's doing little more than abusing his position to spread falsehoods to a wider audience.
The bottom line here is that the Wisconsin-based Coalition for America's Families was lying when it alleged that Justice Butler "sides with criminals 60% of the time" regardless of whether Jessica McBride discovered a typo or two in the Butler campaign's proffered list of cases, and she and McIlheran are two peas in a laughably irresponsible journalism pod.
The above was also submitted to McIlheran's comments.
As demonstrated yesterday, McBride's remarkably irresponsible charge is completely debunked. The "legal errors" McBride claims result from her determined, blinkered insistence that Justice Butler not make reference to the very cases that Burnett County Judge Michael Gableman has been using since November to attack Butler, a situation of which she is clearly unaware.
And McIlheran himself levels his own thoroughly unsupported charge, that Justice Butler "retains at least something of a soft spot for criminal defendants looking for a way off the hook." What an idiotic thing to say, not to mention compelling evidence that McIlheran hasn't the slightest clue about how judges approach cases. But this doesn't stop him.
Even though a further demonstration of McIlheran's risible cluelessness isn't required, he provides one anyway, by also linking to Rick Esenberg's latest post here. Esenberg not only confirms that McBride's hopeless attempt to exclude certain cases is totally wrong, but Atty. Bill Tyroler, writing in Esenberg's comments thread, eviscerates Esenberg's own purported methodology.
Setting aside the demonstrable truism that many of these cases' dispositions do not easily lend themselves to the often false dichotomy of categorization according to either "favoring criminals or law enforcement," Tyroler confirms something I had mentioned earlier: that even requests for review from lower courts of appeals decisions that the Wisconsin Supreme Court declines to accept may legitimately factor into these statistical compilations.
Even that obvious fact puzzles McBride.
And in an earlier Esenberg thread, commenter John Foust makes the salient observation that in many cases, the Supreme Court decisions say just as much — if not more — about errors made in the lower courts than they do about the reviewing court's reasoning, let alone that of some individual justice on that reviewing court.
Foust isn't a lawyer, yet he gets it. What's McIlheran's excuse? He has none. He's doing little more than abusing his position to spread falsehoods to a wider audience.
The bottom line here is that the Wisconsin-based Coalition for America's Families was lying when it alleged that Justice Butler "sides with criminals 60% of the time" regardless of whether Jessica McBride discovered a typo or two in the Butler campaign's proffered list of cases, and she and McIlheran are two peas in a laughably irresponsible journalism pod.
The above was also submitted to McIlheran's comments.
March 21, 2008
LOLWMCs
Constitutional rights = needless technicalities: WMC
Behold: the awesome powers of Justice Louis Butler's lone dissenting opinion among a quorum of seven.
Peruse: This here blog's look at the past and future of State v. Jensen (whilst grooving to the mellow song stylings of ).
Discard: The United States Constitution.
[Please visit the iT Butler/Gableman archive.]
Behold: the awesome powers of Justice Louis Butler's lone dissenting opinion among a quorum of seven.
A second ad, sponsored by [Wisconsin Manufacturers & Commerce], says Butler "" a murder prosecution.Check out: factcheck.org courtesy of Snoozeweek.
The ad also says Butler focused on "needless technicalities," when the case [State v. Jensen] involves a question of constitutional rights so important that the U.S. Supreme Court will weigh in on the subject this spring.roflolol — that may be the best pro-Gableman message yet.
Peruse: This here blog's look at the past and future of State v. Jensen (whilst grooving to the mellow song stylings of ).
Discard: The United States Constitution.
[Please visit the iT Butler/Gableman archive.]
Obscure, dorky blogger pwns metro paper
An obscure, dorky blogger totally scoopage-pwnt the Milwaukee Journal-Sentinel yesterday when he posted the text of a letter penned by Dodge County District Attorney Steven G. Bauer, rescinding the latter's support for Burnett County Judge Michael Gableman in massively awesome stylee.
The J-S report, which didn't appear until nearly 20 hours after the blogger's coup d'pwnage, delivers the wise counsel of Wisconsin Supreme Court Justice Louis Butler's campaign communications director, the feisty and talented Erin Celello, thus:
The blogger immediately set upon his latest scoop by endorsing the tremendously rockin' Mr. Bauer for Dodge County Branch 4 Judge.
He paraphrased admonitions made to his dear old since-departed Grandma at the Euchre table by advising Dodge County voters, "Turn down a Bauer, lose for an hour."
The blogger went on to address, in bullet point fashion, the several readers at the paper who he's noticed lingering often for quarter-hours at a time, via the miracle of Google analytics, which reports the metro daily's host address as "journal-sentinal.com."
To the
The J-S report, which didn't appear until nearly 20 hours after the blogger's coup d'pwnage, delivers the wise counsel of Wisconsin Supreme Court Justice Louis Butler's campaign communications director, the feisty and talented Erin Celello, thus:
If [Mr. Bauer] believes that Gableman is unfit to sit on the Supreme Court because of his continued misleading claims and mistruths, then that is significant. That is something that should speak volumes to voters.And by volumes, she's talkin' the entire set of United States Reports, including Messrs. Dallas, Cranch, and Wheaton.
The blogger immediately set upon his latest scoop by endorsing the tremendously rockin' Mr. Bauer for Dodge County Branch 4 Judge.
He paraphrased admonitions made to his dear old since-departed Grandma at the Euchre table by advising Dodge County voters, "Turn down a Bauer, lose for an hour."
The blogger went on to address, in bullet point fashion, the several readers at the paper who he's noticed lingering often for quarter-hours at a time, via the miracle of Google analytics, which reports the metro daily's host address as "journal-sentinal.com."
To the
1) Tech services — Please fix that typo, it's making me crazy
2) Editorial — Some occasional link lovin' would be nice3) Mgmt — I'm at iTenant@gmail.com, work cheap, and require minimal editng.
— 30 —
The Academy of Arts and Gablemans
Funny letter to the editor in today's Capital Times:
Surgeon General's Warning
Drinking game version may cause cirrhosis.
[A Gableman ad] says Butler would make a bad ruling if he was only given the chance. Butler hadn't actually made this ruling, mind you, but Gableman says he would if he could. Gableman is sure of it. The listener doesn't have to even fact check this one. Listening to the ad twice is enough.Paid political advertisement, I dub thee, a "Gableman."
The ads have a reasoning so unique that they defy the ordinary labels assigned to negative campaigning.
I would encourage voters to pay attention so they can pick out the "Gablemans." This exercise is a good way to cope with the drollery of it all. It may even be fun. Try it at home yourself.Haha.
Surgeon General's Warning
Drinking game version may cause cirrhosis.
McBride: 97% blinded by partisanship
Jessica McBride is at it again and this time with 75% more hysteria. McBride makes much of her allegation that Wisconsin Supreme Court Justice Louis Butler, in responding to the often baseless attacks of the Mike Gableman campaign and its surrogates, is counting non-criminal cases in those responses.
"Cases without CR or CRNM are not considered criminal cases by the court," raves McBride, and charges that Butler is "misrepresenting the court's decisions with legal errors."
What McBride doesn't seem to understand is that the criticism of Butler's dispositions in criminal cases began at least as far back as November, when the Mike Gableman campaign circulated a letter signed by three county sheriffs and three district attorneys.
Not long after, Gableman lieutenant Darrin "The GOP Persuader" Schmitz began disseminating the falsehood that Butler "consistently sides with criminals."
Attached to the letter was a list of nine cases in which Butler participated: Jensen, Knapp, (Richard A.) Brown, Sykes, DOC v. Schwarz, Stenklyft, Young, Jerrell, CJ, and Dubose. "Paid for by Gableman for Supreme Court," it says.
Of those nine cases, only six are designated with the -CR suffix, and if McBride really wants to get technical, Stenklyft concerns a statute passed in the wake of Wisconsin's Truth in Sentencing provisions that nevertheless allowed for sentence adjustment, and ENTIRELY revolves on questions of statutory construction and the constitutional separation of powers among the legislative, executive, and judicial branches, neither of which are criminal matters.
(Stenklyft is another case the Gableman campaign has deliberately misrepresented, and I'll have more on it soon.)
One of the nine cases concerns a Chapter 980 commitment, precisely the type of case McBride demands that Butler not include for his defense, Jerrell, CJ is a juvenile matter, another sort of case that McBride demands Butler not include for his defense, and DOC v. Schwarz addresses an administrative matter where neither of the named parties are even "criminals" (Schwarz is an official in the State Division of Hearings and Appeals).
Rick Esenberg, a professor of law at Marquette University, may once again lamely accuse me of "sniping at the edges," but this is hardly the case. This is fundamental. Because McBride, in her devoted zealotry, is essentially demanding that Butler may not defend himself by making reference to the very decisions that the Gableman campaign is using to attack him. And she's apparently doing it with a straight (albeit red-in-the) face.
I don't need to expand on how utterly nonsensical and hypocritical McBride's position is. I thought journalists valued their credibility.
While we're on the subject of percentages, let's recall, shall we, Gableman's own comical observations:
How do you get to claim you "presided over" 9,000 uncontested traffic tickets, by the way? Because a copy happened to pass through an office in the building where you work? When Justice Butler was a circuit judge in Milwaukee County, he could often be found enjoying his lunch in the courthouse cafeteria. Is he therefore authorized to assert that he "presided over" a delicious ham sandwich?
That's almost as silly as expressing unawareness of studies contradicting numbers that you have no idea are accurate or not.
"Cases without CR or CRNM are not considered criminal cases by the court," raves McBride, and charges that Butler is "misrepresenting the court's decisions with legal errors."
What McBride doesn't seem to understand is that the criticism of Butler's dispositions in criminal cases began at least as far back as November, when the Mike Gableman campaign circulated a letter signed by three county sheriffs and three district attorneys.
Not long after, Gableman lieutenant Darrin "The GOP Persuader" Schmitz began disseminating the falsehood that Butler "consistently sides with criminals."
Attached to the letter was a list of nine cases in which Butler participated: Jensen, Knapp, (Richard A.) Brown, Sykes, DOC v. Schwarz, Stenklyft, Young, Jerrell, CJ, and Dubose. "Paid for by Gableman for Supreme Court," it says.
Of those nine cases, only six are designated with the -CR suffix, and if McBride really wants to get technical, Stenklyft concerns a statute passed in the wake of Wisconsin's Truth in Sentencing provisions that nevertheless allowed for sentence adjustment, and ENTIRELY revolves on questions of statutory construction and the constitutional separation of powers among the legislative, executive, and judicial branches, neither of which are criminal matters.
(Stenklyft is another case the Gableman campaign has deliberately misrepresented, and I'll have more on it soon.)
One of the nine cases concerns a Chapter 980 commitment, precisely the type of case McBride demands that Butler not include for his defense, Jerrell, CJ is a juvenile matter, another sort of case that McBride demands Butler not include for his defense, and DOC v. Schwarz addresses an administrative matter where neither of the named parties are even "criminals" (Schwarz is an official in the State Division of Hearings and Appeals).
Rick Esenberg, a professor of law at Marquette University, may once again lamely accuse me of "sniping at the edges," but this is hardly the case. This is fundamental. Because McBride, in her devoted zealotry, is essentially demanding that Butler may not defend himself by making reference to the very decisions that the Gableman campaign is using to attack him. And she's apparently doing it with a straight (albeit red-in-the) face.
I don't need to expand on how utterly nonsensical and hypocritical McBride's position is. I thought journalists valued their credibility.
While we're on the subject of percentages, let's recall, shall we, Gableman's own comical observations:
Gableman said the [sided with criminals] 60% [of the time] figure came from a study by an outside group.And don't forget the 9,000 uncontested traffic tickets that Gableman "presided over" and used in support of his own calculations, a blatant misrepresentation upon which McBride is predictably silent.
"I don't know if the number is 30%, 60%, 80%, or 90%," [Gableman] said, before adding, "I'm unaware of any study that contradicts those numbers."
How do you get to claim you "presided over" 9,000 uncontested traffic tickets, by the way? Because a copy happened to pass through an office in the building where you work? When Justice Butler was a circuit judge in Milwaukee County, he could often be found enjoying his lunch in the courthouse cafeteria. Is he therefore authorized to assert that he "presided over" a delicious ham sandwich?
That's almost as silly as expressing unawareness of studies contradicting numbers that you have no idea are accurate or not.
March 20, 2008
Gableman to turn over new leaf?
From the Charity Begins at Home Department, the Milwaukee Journal-Sentinel's Stacy Forster reports that Burnett County Judge Michael Gableman, in previewing his latest teevee ad, vows to "cut through [the] slimy attacks and set the record straight."
Presumably this means Gableman's new advertisement will vacate and correct the number of false innuendoes and misrepresentations in his previous offering, the one that inspired Dodge County District Attorney Steven G. Bauer to publicly and demonstratively withdraw his support for Gableman.
Maybe Gableman can also explain in greater detail what the problem was when Wisconsin Supreme Court Justice Louis Butler voted to 'prohibit prosecutors from using a tool' of law enforcement when the said tool was so laughably unconstitutional to begin with, Chief Justice Shirley Abrahamson was moved to borrow from the "Soup Nazi" episode of Seinfeld.
(It's a good thing Gableman isn't running against C.J. Abrahamson, or else he'd accuse her of "citing" Spike Feresten.)
A bit later in the day, Ms. Forster related the following priceless non-observation by Gableman. Concerning Justice Butler's experience as a defense attorney 20+ years ago (before Gableman had even started law school), Gableman "declined to explain why voters should view that as a reason not to vote for Butler in the April 1 election."
Hey, you can't really expect him to answer that one, can you? Because Butler's previous career (did I mention that was before Gableman had even started law school?) is only the current front and centerpiece of the Gableman campaign. Apparently Mike Gableman is a man of few words. Rather, he is a man of many disturbing and deliberately misleading images. But even those are just a bit of spin!
[Please visit the iT Butler/Gableman archive.]
Presumably this means Gableman's new advertisement will vacate and correct the number of false innuendoes and misrepresentations in his previous offering, the one that inspired Dodge County District Attorney Steven G. Bauer to publicly and demonstratively withdraw his support for Gableman.
Maybe Gableman can also explain in greater detail what the problem was when Wisconsin Supreme Court Justice Louis Butler voted to 'prohibit prosecutors from using a tool' of law enforcement when the said tool was so laughably unconstitutional to begin with, Chief Justice Shirley Abrahamson was moved to borrow from the "Soup Nazi" episode of Seinfeld.
(It's a good thing Gableman isn't running against C.J. Abrahamson, or else he'd accuse her of "citing" Spike Feresten.)
A bit later in the day, Ms. Forster related the following priceless non-observation by Gableman. Concerning Justice Butler's experience as a defense attorney 20+ years ago (before Gableman had even started law school), Gableman "declined to explain why voters should view that as a reason not to vote for Butler in the April 1 election."
Hey, you can't really expect him to answer that one, can you? Because Butler's previous career (did I mention that was before Gableman had even started law school?) is only the current front and centerpiece of the Gableman campaign. Apparently Mike Gableman is a man of few words. Rather, he is a man of many disturbing and deliberately misleading images. But even those are just a bit of spin!
[Please visit the iT Butler/Gableman archive.]
Amen, brother.
This letter appeared in the Watertown Daily Times yesterday:
I am rescinding my endorsement of Judge Michael Gableman for Wisconsin Supreme Court. I endorsed him because he had been a district attorney and I believed he would bring an understanding of law enforcement to the Supreme Court. However, a recent television ad released by him makes me believe that Michael Gableman is unfit for the Supreme Court.
Gableman's ad states that Louis Butler "worked to put criminals on the street," and then brings up a case involving Reuben Lee Mitchell and states, "Butler found a loophole and then Mitchell went on to molest another child."
First, this ad doesn't tell you that Justice Butler's involvement with the Reuben Lee Mitchell case was when Butler worked as an appellate attorney for the state public defender and not as a judge or justice. Butler was fulfilling his ethical duty as Mitchell's appellate defense attorney. He had nothing to do with this case as a judge or justice.
Second, Gableman's ad is inaccurate. Mitchell served his entire prison sentence. Butler's legal argument was deemed correct by the Court of Appeals and the Supreme Court. However, Mitchell was not given a new trial. Mitchell's later conviction had nothing to do with Butler.
Third, in the United States of America, defendants have the constitutional right to an effective defense attorney under the Sixth Amendment of the Constitution — one of our most fundamental constitutional rights. The accuracy of our criminal justice system to separate the guilty from the falsely accused is greatly reduced without competent defense counsel. Gableman's ad mocks this fundamental constitutional right which protects us all.
As a prosecutor, I firmly believe in convicting and properly punishing criminals, but I also understand that I have a duty to be certain that a defendant is actually guilty. A competent criminal defense attorney helps me be accurate.
I am troubled that a candidate for our highest court would belittle our constitutional right to counsel which enhances the accuracy of the criminal justice system. I am equally troubled by Gableman's cavalier disregard for accuracy in his representations to the public through this ad. The integrity of the criminal justice system should not be allowed to be tarnished by one man's ambitious desire for higher office. Judge Gableman will not be receiving my vote for Supreme Court justice in April.
Steven G. Bauer
District Attorney
Dodge County
I am rescinding my endorsement of Judge Michael Gableman for Wisconsin Supreme Court. I endorsed him because he had been a district attorney and I believed he would bring an understanding of law enforcement to the Supreme Court. However, a recent television ad released by him makes me believe that Michael Gableman is unfit for the Supreme Court.
Gableman's ad states that Louis Butler "worked to put criminals on the street," and then brings up a case involving Reuben Lee Mitchell and states, "Butler found a loophole and then Mitchell went on to molest another child."
First, this ad doesn't tell you that Justice Butler's involvement with the Reuben Lee Mitchell case was when Butler worked as an appellate attorney for the state public defender and not as a judge or justice. Butler was fulfilling his ethical duty as Mitchell's appellate defense attorney. He had nothing to do with this case as a judge or justice.
Second, Gableman's ad is inaccurate. Mitchell served his entire prison sentence. Butler's legal argument was deemed correct by the Court of Appeals and the Supreme Court. However, Mitchell was not given a new trial. Mitchell's later conviction had nothing to do with Butler.
Third, in the United States of America, defendants have the constitutional right to an effective defense attorney under the Sixth Amendment of the Constitution — one of our most fundamental constitutional rights. The accuracy of our criminal justice system to separate the guilty from the falsely accused is greatly reduced without competent defense counsel. Gableman's ad mocks this fundamental constitutional right which protects us all.
As a prosecutor, I firmly believe in convicting and properly punishing criminals, but I also understand that I have a duty to be certain that a defendant is actually guilty. A competent criminal defense attorney helps me be accurate.
I am troubled that a candidate for our highest court would belittle our constitutional right to counsel which enhances the accuracy of the criminal justice system. I am equally troubled by Gableman's cavalier disregard for accuracy in his representations to the public through this ad. The integrity of the criminal justice system should not be allowed to be tarnished by one man's ambitious desire for higher office. Judge Gableman will not be receiving my vote for Supreme Court justice in April.
Steven G. Bauer
District Attorney
Dodge County
March 19, 2008
McIlheran swallows the bait
Updated links below
Perhaps still feeling the effects of one too many Monday night pots of grog, the Milwaukee Journal-Sentinel's in-house "right-wing guy" and unintentional comedian St. Paddy McIlheran appears to have ingested Jessica McBride's legal "analysis" hook, line, and sinker.
Trouble is, La McBride only had a preliminary draft working copy of the list of Wisconsin Supreme Court cases she attempted to get all Prof. Yale Kamisar on. Oopsies. Fortunately, we know better.
For one thing, the two cases McBride claims were "omitted" from the list and the said omissions contribute to "outright lies and distortions" are in fact contained on the list. And they are correctly designated by the Butler campaign as having been rulings in favor of the defendants. McBride is working from an incomplete document and she apparently didn't check before publishing her blog post, which she obviously didn't just throw together in the course of an evening.
Several of the other cases that McBride claims represent "outright lies and distortions" and "undeniable misrepresentations" on the part of Justice Butler are cases that involve procedural questions as opposed to appeals dealing directly with judgments of conviction. In those cases, it's at the very least fairly debatable as to whether Butler sided for or against law enforcement, as the sayings go.
For example, State v. James E. Brown is a unanimous decision authored by Justice David Prosser (the court's leading "traditionalist") spanking the circuit court for accepting Brown's guilty plea during a constitutionally faulty proceeding. Yet the Brown court gave the State of Wisconsin (read: law enforcement) another kick at the can, in that it ordered a hearing at which the State could present additional evidence as to why Brown's plea might be accepted nevertheless.
Whether or not the State was successful at the subsequent hearing has nothing whatsoever to do with Justice Butler. Butler simply agreed with the court's most conservative members that the initial plea hearing was ineffectively administered by the circuit court.
As a journalist, McBride likely wouldn't appreciate the working draft of a project similarly critiqued prior to its completion. But this is unsurprising, since she has something of a history of jumping the factual gun in favor of expressing zealous ideology.
Patrick McIlheran, on the other hand, can be less easily forgiven. As a prominent columnist at Milwaukee's only daily newspaper and haranguing from the pulpit it provides, he has a far greater responsibility for circumspection and skepticism.
Yet here he is, assisting in more widely disseminating accusations of "outright lying" on the part of Justice Butler. That is remarkably irresponsible for a so-called journalist, by anyone's standards.
I'm willing to bet he didn't spend one minute checking into any of McBride's claims. There's certainly no evidence that he did in his little piece of right-wing puffery. Needless to say, it's also a very poor reflection on the Journal-Sentinel itself.
eta 1: Marquette Law School's Rick Esenberg leaps to McBride's defense, and accuses me of "sniping around the edges." Funny.
eta 2: More from Atty. Mike Plaisted.
Perhaps still feeling the effects of one too many Monday night pots of grog, the Milwaukee Journal-Sentinel's in-house "right-wing guy" and unintentional comedian St. Paddy McIlheran appears to have ingested Jessica McBride's legal "analysis" hook, line, and sinker.
Trouble is, La McBride only had a preliminary draft working copy of the list of Wisconsin Supreme Court cases she attempted to get all Prof. Yale Kamisar on. Oopsies. Fortunately, we know better.
For one thing, the two cases McBride claims were "omitted" from the list and the said omissions contribute to "outright lies and distortions" are in fact contained on the list. And they are correctly designated by the Butler campaign as having been rulings in favor of the defendants. McBride is working from an incomplete document and she apparently didn't check before publishing her blog post, which she obviously didn't just throw together in the course of an evening.
Several of the other cases that McBride claims represent "outright lies and distortions" and "undeniable misrepresentations" on the part of Justice Butler are cases that involve procedural questions as opposed to appeals dealing directly with judgments of conviction. In those cases, it's at the very least fairly debatable as to whether Butler sided for or against law enforcement, as the sayings go.
For example, State v. James E. Brown is a unanimous decision authored by Justice David Prosser (the court's leading "traditionalist") spanking the circuit court for accepting Brown's guilty plea during a constitutionally faulty proceeding. Yet the Brown court gave the State of Wisconsin (read: law enforcement) another kick at the can, in that it ordered a hearing at which the State could present additional evidence as to why Brown's plea might be accepted nevertheless.
Whether or not the State was successful at the subsequent hearing has nothing whatsoever to do with Justice Butler. Butler simply agreed with the court's most conservative members that the initial plea hearing was ineffectively administered by the circuit court.
As a journalist, McBride likely wouldn't appreciate the working draft of a project similarly critiqued prior to its completion. But this is unsurprising, since she has something of a history of jumping the factual gun in favor of expressing zealous ideology.
Patrick McIlheran, on the other hand, can be less easily forgiven. As a prominent columnist at Milwaukee's only daily newspaper and haranguing from the pulpit it provides, he has a far greater responsibility for circumspection and skepticism.
Yet here he is, assisting in more widely disseminating accusations of "outright lying" on the part of Justice Butler. That is remarkably irresponsible for a so-called journalist, by anyone's standards.
I'm willing to bet he didn't spend one minute checking into any of McBride's claims. There's certainly no evidence that he did in his little piece of right-wing puffery. Needless to say, it's also a very poor reflection on the Journal-Sentinel itself.
eta 1: Marquette Law School's Rick Esenberg leaps to McBride's defense, and accuses me of "sniping around the edges." Funny.
eta 2: More from Atty. Mike Plaisted.
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:
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:
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:
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:
Fraley funnies II
Observant reseacher the Brew City Brawler notes this morning that Republican consultant Brian Fraley, who famously remarked that a certain former employee of the Wisconsin State Public Defender "by choice ... help[ed] a few scumbags get off," once billed the State for more than two grand in legal fees incurred in his own defense.
Prior to the ratification of the U.S. Constitution, individual States could print their own currency but lately they raise the dough from the public. The same public, as the Brawler points out, that was paying Fraley's 70K salary when he invoiced them for his defender.
These days Brian Fraley attempts to invoice for "Critical Thinking."
Prior to the ratification of the U.S. Constitution, individual States could print their own currency but lately they raise the dough from the public. The same public, as the Brawler points out, that was paying Fraley's 70K salary when he invoiced them for his defender.
These days Brian Fraley attempts to invoice for "Critical Thinking."
March 18, 2008
Interesting.
The ad uses a bit of spin.Just a smidgen, don't you know.
Mike Plaisted appears to be getting his wish, as conservative supporters of Burnett County Judge Mike Gableman, having finally obtained the release of their putative legal counsel, Rick Esenberg of Marquette Law School, step forward in expressing their general indifference to Gableman's new teevee spot.
As for the ad's alleged racist elements, I'm considerably more circumspect than perhaps is Atty. Plaisted. But since he's been following these sorts of things for longer and more closely than I have, he's certainly entitled to his impressions.
Still, one has to wonder, why did Gableman select Reuben Lee Mitchell as the focus of his disgracefully misleading and disingenuous attack against Wisconsin Supreme Court Justice Louis Butler?
Gableman, who has been a judge and a prosecutor in two of the most sparsely populated counties in Wisconsin for only a few years, managed to come up with nine "child molesters" to flash on the same screen.
Louis Butler, on the other hand, was a defense attorney and a judge for 25 years in Milwaukee County, population nearly one million. Moreover, Butler's involvement with the Mitchell case was confined to filing an appeal, which he eventually lost.
And, most importantly of all, regardless of the repugnant nature of Mitchell's bad acts, his right to counsel and appeal are guaranteed constitutionally, so to criticize Butler's involvement per se is practically an affront to the American system of democracy.
That would be the same system, incidentally, in which Gableman actively participates and in which Gableman is currently seeking a considerably more enhanced position, for which he claims he is eminently and especially qualified.
(In my view, there's been precious little demonstration in support of that claim but quite a lot to mitigate against it, not the least of which are the relative qualities of the incumbent.)
So, why Reuben Mitchell, in particular, as the deliberate focus of Gableman's blatant fear mongering? That's the question.
Part of the answer, I suspect, is that Gableman's ad is directed not to the voters in metropolitan areas like Madison and Milwaukee, which are predominantly Democratic, and where Gableman likely doesn't stand a chance. Rather, it's aimed at that demographic which, shall we say, doesn't exactly mirror what you'll find along Teutonia Ave.
March 17, 2008
WJCIC statement on Gableman ad
Available here (.pdf; 2 pgs.).
Good and timely thing that conservatives managed to unearth a preacher who said something ridiculous (now that is news!).
One of the (innumerable) funny things about political conservatives, they constantly rag on the "drive-by" media for downplaying important issues, or else emphasizing what conservatives consider irrelevancies.
Yet here they are chomping into and dragging this Jeremiah Wright character around like a pack of rabid, starving pit bull terriers, all the while perfectly content to let Gableman's reprehensible advertisement fester away out there, since whatever positive effect it has for Gableman suits their purposes just fine.
"Gableman's campaign adviser Darrin Schmitz said the ad is factual." Darrin Schmitz wouldn't recognize a fact if it bit him on the ass.
Unbecoming a sitting judge and a candidate for our state's highest court. ... disgraceful and deliberately misleading ... a gross violation of [Gableman's own campaign] pledge. ... Offensive, race-baiting ... contemptible ...Here's the money:
We believe Judge Gableman is deliberately misrepresenting the facts regarding this case and Justice Butler’s role in it, and it appears Judge Gableman is doing so either knowingly or with reckless disregard for the truth or falsity of his campaign statements.No wonder Plaisted hears nothing but chirping crickets. Who's going to defend textbook defamation? (Aside from this guy, of course.)
Good and timely thing that conservatives managed to unearth a preacher who said something ridiculous (now that is news!).
One of the (innumerable) funny things about political conservatives, they constantly rag on the "drive-by" media for downplaying important issues, or else emphasizing what conservatives consider irrelevancies.
Yet here they are chomping into and dragging this Jeremiah Wright character around like a pack of rabid, starving pit bull terriers, all the while perfectly content to let Gableman's reprehensible advertisement fester away out there, since whatever positive effect it has for Gableman suits their purposes just fine.
"Gableman's campaign adviser Darrin Schmitz said the ad is factual." Darrin Schmitz wouldn't recognize a fact if it bit him on the ass.
Fraley funnies
I wrote about the near-pathetic adventures of Republican consultant Brian Fraley yesterday. Today, Fraley is back with more priceless consulting, accusing One Wisconsin Now of trying to "intimidate and silence" Wisconsin Manufacturers & Commerce because OWN's principals set up a website to monitor WMC's political activities.
Is this character for real?
Seriously, a website is going to "intimidate and silence" WMC? I can't even exchange an Al Hamilton for a roll of quarters at M&I Bank to do my laundry without a demand for ID and an account number.
Is this character for real?
Seriously, a website is going to "intimidate and silence" WMC? I can't even exchange an Al Hamilton for a roll of quarters at M&I Bank to do my laundry without a demand for ID and an account number.
Conservative lawyers implicate Gableman
Speaking of Charlie Sykes, I see from one of the blog feeds that he's touting a letter authored by Rick Esenberg of Marquette Law School and a few of his "prominent conservative" friends in support of Wisconsin District II Court of Appeals Judge Lisa Neubauer, who is also running on the April 1 ballot to retain her seat.
Neubauer, like Wisconsin Supreme Court Justice Louis Butler, was appointed to the bench by Governor Jim Doyle. Butler's own seat is being challenged by Burnett County Judge Michael Gableman.
Part of the letter contains the following criteria:
Somebody remind me again where much of Gableman's political support is coming from? Oh right, Wisconsin Manufacturers & Commerce, with the substantial assistance of Prof. Rick Esenberg.
[Please visit the iT Butler/Gableman archive.]
Neubauer, like Wisconsin Supreme Court Justice Louis Butler, was appointed to the bench by Governor Jim Doyle. Butler's own seat is being challenged by Burnett County Judge Michael Gableman.
Part of the letter contains the following criteria:
Judgment is founded on and requires three distinct and essential qualities:A number of things would seem to indicate that the signatories may have a difficult time rationalizing these essential requirements with any support for Gableman they may express, however implicit.
1. Intelligence - the capacity to truly understand the law.
2. Diligence - a demonstrated willingness to work hard.
3. Integrity - both judicial integrity to follow the law made by others and personal integrity.
Somebody remind me again where much of Gableman's political support is coming from? Oh right, Wisconsin Manufacturers & Commerce, with the substantial assistance of Prof. Rick Esenberg.
[Please visit the iT Butler/Gableman archive.]
The blogfather gets a clue?
A guy on a blog says local conservative radio yelper Charlie Sykes called Burnett County Judge Michael Gableman's recent teevee spot "despicable." I'm in no position to verify this because three minutes of Sykes's show was about all I could stand one time.
The blog commenter made this remark last night, but I hear tell from people who monitor Sykes's own teevee spot Sunday Incite — bless their hearts; talk about taking one for the team — that Milwaukee's own King of All Media only made some superficial nod to the campaign advertising generally being "over the line."
Not that I give a rat's left nut what Charlie Sykes thinks or says, but evidently a lot of people do, and if he specifically condemned Gableman's tribute to the State Supreme Court's character and fitness guidelines, then I suppose that might be significant.
Confirm or deny. I know about 450 of Sykes's lemmings invaded this blog one day, so maybe two or three of them are still lurking about.
The blog commenter made this remark last night, but I hear tell from people who monitor Sykes's own teevee spot Sunday Incite — bless their hearts; talk about taking one for the team — that Milwaukee's own King of All Media only made some superficial nod to the campaign advertising generally being "over the line."
Not that I give a rat's left nut what Charlie Sykes thinks or says, but evidently a lot of people do, and if he specifically condemned Gableman's tribute to the State Supreme Court's character and fitness guidelines, then I suppose that might be significant.
Confirm or deny. I know about 450 of Sykes's lemmings invaded this blog one day, so maybe two or three of them are still lurking about.
A Spitzer-take
Oh, I don't know ... even I could endure three days of phony Murdoch moral outrage if the payoff's a topless hooker.
Teh New York Post's Best Weak Evar.
Related: Mrs. Spitzer to blame: Moralist.
Teh New York Post's Best Weak Evar.
Related: Mrs. Spitzer to blame: Moralist.
March 16, 2008
Help control the Burnett County crime wave
And assist us in keeping the Wisconsin District III Court of Appeals docket free of uncontested traffic tickets. To those ends:
Retain Mike Gableman, Burnett County Circuit Court Judge
Not to appear as a mutual admiration society or anything (because the linked post contains its own link to this here blog) but Sam Sarver at Brazen Maverick made an excellent point this morning:
I still can't get over that. Can you imagine, a self-respecting circuit court judge claiming to have "presided over" uncontested traffic tickets, and then actually counting them towards his calculated percentage of getting upheld versus getting reversed on appeal. It's astounding, truly. I can't possibly be the only one laughing.
Come to think of it, make that two excellent points:
Mr. Sarver maintains an exemplary blog, and if he keeps being good, maybe the Brawler and me will let him buy us a drink sometime.
Retain Mike Gableman, Burnett County Circuit Court Judge
Not to appear as a mutual admiration society or anything (because the linked post contains its own link to this here blog) but Sam Sarver at Brazen Maverick made an excellent point this morning:
If Gableman is so good at putting criminals behind bars, why not leave him at his seat in the circuit court, where he can keep putting away bad dudes?Not to mention "presiding over" 9,000 uncontested traffic tickets. Gableman Fun Fact: Did you know, not a one of those 9,000 uncontested traffic tickets was reversed on appeal!
I still can't get over that. Can you imagine, a self-respecting circuit court judge claiming to have "presided over" uncontested traffic tickets, and then actually counting them towards his calculated percentage of getting upheld versus getting reversed on appeal. It's astounding, truly. I can't possibly be the only one laughing.
Come to think of it, make that two excellent points:
That way, he wouldn't have to deal with all the nuance and subtlety of the State Supreme Court, for which he obviously lacks sufficient patience.It's my distinct impression that that ain't all he lacks.
Mr. Sarver maintains an exemplary blog, and if he keeps being good, maybe the Brawler and me will let him buy us a drink sometime.
The lamest Gableman defense yet
An intrepid soul has ventured bravely forth in defense of Burnett County Judge Michael Gableman's freshly minted television ad which, as has been already observed, distorts reality in several decidedly reprehensible manners.
The said brave soul, Republican consultant Brian Fraley, helpfully informs us that "Louis Butler WAS, by choice, a public defender for many years and it looks like he did help a few scumbags get off."
Yes, Wisconsin Supreme Court Justice Louis Butler was a public defender 20 years ago. Thanks for that blinding glimpse of the obvious, and also for the absurd suggestion that there's something wrong with being one (the right to criminal defense counsel is explicitly guaranteed by the United States Constitution).
So Fraley thinks "it looks like" Louis Butler had some success as an attorney. Let's hope he did! I'm not aware of anyone who attended law school with a view to being a failure.
But does Fraley have any examples? Well, no. Only the so-called example contained in Gableman's ad, a case Butler had relatively little to do with. Butler was not even the defendant's lawyer during the initial proceedings. Butler filed an appeal of the original conviction, which was his job at the time, and won on a question of whether some evidence was legally admissible at trial.
However, Butler's efforts were ultimately for naught, because although the Wisconsin Supreme Court agreed the evidence in question was tainted, it found its effect on the jury was not prejudicial, and therefore upheld Reuben Lee Mitchell's conviction. That Mitchell served his initial sentence and then went on to re-offend had absolutely nothing to do with Louis Butler. Nothing.
Maybe Fraley doesn't know it, but there are laws in this country that govern what sort of testimony and evidence may be presented in court. It doesn't matter whether the defendant is an alleged child rapist or a homeless man who stole some loaves of bread from Panera's corporate headquarters. The principles are the same.
So Butler wasn't "working to put Reuben Lee Mitchell on the street," he was working to ensure another of Mitchell's constitutional rights, the one to a fair trial. Fraley and anyone else foolish enough to defend Gableman's teevee ad should take a look at the Bill of Rights sometime. They might be amazed at the number of protections that are extended to criminal defendants, let alone the panoply of more specific guarantees that arise from the Constitution's broad strokes.
And the public defender exists because the government has a lot of resources that the accused often doesn't have. The Framers of the Constitution, in their wisdom, knew this. But it would be unfair to cast Brian Fraley's understanding against that of, for example, James Madison, since few minds compare favorably with the latter's.
Next, quoting from some campaign propaganda received from the lovely and talented Gableman mouthpiece Darrin Schmitz, Fraley reminds us, in yet another glaring obviousness, that the public record is "fair game" and, by golly, even Louis Butler said so himself.
Well of course the public record itself is "fair game." But is it fair game to manipulate, distort, and constructively lie about the public record itself? Wouldn't that be the polar opposite of "fair game"? Why, yes, yes it would.
And that, believe it or not, is the entire substance of professional Republican consultant Brian Fraley's defense of Michael Gableman's disgraceful attack performance. One wonders why he decided to publish it in the first place. Far from being a defense, it's more like an expression of helpless embarrassment. And if that was not the intent, it certainly is the result.
The sole saving grace is that Fraley provided his sparkling analysis for free on the internets. Because in a more professional set of circumstances, Fraley's consulting firm, The Markesan Group, advertises first and foremost "Critical Thinking" services. Apparently you have to pay him for that. I sure as hell hope it's cheap, but not quite as cheap as Gableman's electoral strategy.
One thing is undeniable: Justice Louis Butler, in his constitutionally mandated former role, was a far more effective defender of the accused than is Brian Fraley of Mike Gableman's deliberate rubbish in his own present role as lame-o Republican apologist.
[Please visit the iT Butler/Gableman archive.]
The said brave soul, Republican consultant Brian Fraley, helpfully informs us that "Louis Butler WAS, by choice, a public defender for many years and it looks like he did help a few scumbags get off."
Yes, Wisconsin Supreme Court Justice Louis Butler was a public defender 20 years ago. Thanks for that blinding glimpse of the obvious, and also for the absurd suggestion that there's something wrong with being one (the right to criminal defense counsel is explicitly guaranteed by the United States Constitution).
So Fraley thinks "it looks like" Louis Butler had some success as an attorney. Let's hope he did! I'm not aware of anyone who attended law school with a view to being a failure.
But does Fraley have any examples? Well, no. Only the so-called example contained in Gableman's ad, a case Butler had relatively little to do with. Butler was not even the defendant's lawyer during the initial proceedings. Butler filed an appeal of the original conviction, which was his job at the time, and won on a question of whether some evidence was legally admissible at trial.
However, Butler's efforts were ultimately for naught, because although the Wisconsin Supreme Court agreed the evidence in question was tainted, it found its effect on the jury was not prejudicial, and therefore upheld Reuben Lee Mitchell's conviction. That Mitchell served his initial sentence and then went on to re-offend had absolutely nothing to do with Louis Butler. Nothing.
Maybe Fraley doesn't know it, but there are laws in this country that govern what sort of testimony and evidence may be presented in court. It doesn't matter whether the defendant is an alleged child rapist or a homeless man who stole some loaves of bread from Panera's corporate headquarters. The principles are the same.
So Butler wasn't "working to put Reuben Lee Mitchell on the street," he was working to ensure another of Mitchell's constitutional rights, the one to a fair trial. Fraley and anyone else foolish enough to defend Gableman's teevee ad should take a look at the Bill of Rights sometime. They might be amazed at the number of protections that are extended to criminal defendants, let alone the panoply of more specific guarantees that arise from the Constitution's broad strokes.
And the public defender exists because the government has a lot of resources that the accused often doesn't have. The Framers of the Constitution, in their wisdom, knew this. But it would be unfair to cast Brian Fraley's understanding against that of, for example, James Madison, since few minds compare favorably with the latter's.
Next, quoting from some campaign propaganda received from the lovely and talented Gableman mouthpiece Darrin Schmitz, Fraley reminds us, in yet another glaring obviousness, that the public record is "fair game" and, by golly, even Louis Butler said so himself.
Well of course the public record itself is "fair game." But is it fair game to manipulate, distort, and constructively lie about the public record itself? Wouldn't that be the polar opposite of "fair game"? Why, yes, yes it would.
And that, believe it or not, is the entire substance of professional Republican consultant Brian Fraley's defense of Michael Gableman's disgraceful attack performance. One wonders why he decided to publish it in the first place. Far from being a defense, it's more like an expression of helpless embarrassment. And if that was not the intent, it certainly is the result.
The sole saving grace is that Fraley provided his sparkling analysis for free on the internets. Because in a more professional set of circumstances, Fraley's consulting firm, The Markesan Group, advertises first and foremost "Critical Thinking" services. Apparently you have to pay him for that. I sure as hell hope it's cheap, but not quite as cheap as Gableman's electoral strategy.
One thing is undeniable: Justice Louis Butler, in his constitutionally mandated former role, was a far more effective defender of the accused than is Brian Fraley of Mike Gableman's deliberate rubbish in his own present role as lame-o Republican apologist.
[Please visit the iT Butler/Gableman archive.]
Night of broken ass
Via The Chief, the carefully considered backwoods northwoods conservative Republican view of Barack Obama:
Who knew Mein Kampf was about dressing oneself.
Obama keeps saying that he wants change but he will not say what the change is.That is by way of — get this — "educating people." The Chief responds appropriately here. Jesse Seymour's favorite book is Harry Potter, so perhaps he is using magickal powerz and crystal ballin' Obama's crimes against humanity. But in the meantime, you want a crime against humanity, check out Seymour's jacket-shirt-tie combo.
In 1933 Germany had a major change in government. We all know how that story ended.
Who knew Mein Kampf was about dressing oneself.
March 15, 2008
Plaisted on Gableman
As usual, learned counsel Mike Plaisted minces no words and pulls no punches. As for Janine Geske's quote carried by the AP report, Plaisted's wish to disassociate "we" from "us" is well taken, and I almost said exactly the same thing last night as a small caveat to endorsing Justice Geske's assessment in full.
But I refrained because Geske, in giving impressive effect to why she is one of the most respected lawyers in the State, is lamenting the fact that Gableman himself is a Wisconsin attorney and judge, yet he is engaging in this appalling conduct, and it brings dishonor on the entire profession. We are all tarnished by it, and in some sense we are responsible, or at least responsible for correcting it.
If there really is any justice, then this manifestly disgraceful advertisement should sink Michael Gableman's misbegotten and misguided quest for the Wisconsin Supreme Court once and for all, and right this instant. Because he clearly has no business there.
And if I was a full-on supporter of general elections for Wisconsin Supreme Court justices (I'm ambivalent), I'd be cringing at this latest revealing of Gableman's odious strategy.
Alternatively, if I supported those general elections and was a Gableman surrogate or supporter, I could understand perfectly well why a merit-based appointment system would be so distasteful.
Because this man wouldn't stand a chance.
But I refrained because Geske, in giving impressive effect to why she is one of the most respected lawyers in the State, is lamenting the fact that Gableman himself is a Wisconsin attorney and judge, yet he is engaging in this appalling conduct, and it brings dishonor on the entire profession. We are all tarnished by it, and in some sense we are responsible, or at least responsible for correcting it.
If there really is any justice, then this manifestly disgraceful advertisement should sink Michael Gableman's misbegotten and misguided quest for the Wisconsin Supreme Court once and for all, and right this instant. Because he clearly has no business there.
And if I was a full-on supporter of general elections for Wisconsin Supreme Court justices (I'm ambivalent), I'd be cringing at this latest revealing of Gableman's odious strategy.
Alternatively, if I supported those general elections and was a Gableman surrogate or supporter, I could understand perfectly well why a merit-based appointment system would be so distasteful.
Because this man wouldn't stand a chance.
Beware the IDiots of March
The religiously tinged evolution-questioning theory of Intelligent Design could more easily be brought up in public-school science classrooms under a proposed "academic freedom" legislation being pushed by conservative lawmakers.Read the complete article in the Miami Herald.
A leading voice for the Intelligent Design movement acknowledged as much Wednesday by saying that the theory constitutes "scientific information," which the bill expressly and repeatedly says teachers should present in questioning and criticizing evolution without fear of persecution.
The remarks by Casey Luskin, an attorney with the Seattle-based Discovery Institute, were made during a press conference with actor-columnist-speechwriter-gameshow host [-IDiot] Ben Stein, who's exhibiting a documentary in support of the legislation.
As the mighty Wesley Elsberry correctly observes,
The only reason the Discovery Institute makes a big deal about not "mandating" instruction in “intelligent design” creationism (IDC) is that a law doing so could be challenged immediately without waiting for it to actually affect a classroom. * * *Sneaky bastards they are.
The falsely so-called "academic freedom" bills aim to maximize the proportion of teachers that will participate in the Discovery Institute miseducation scheme and to extend the strategy to also recruit children into being as disruptive as possible whenever evolutionary science is a topic in a classroom.
March 14, 2008
Who are those child molesters?
Burnett County Judge Michael Gableman's campaign ad released today features a sequence of nine photos, over the title and the narration, "Putting child molesters behind bars for over 100 years."
Setting aside the ludicrous grammar (Gableman is only 41), the sixth in the series appears to be Larry J. "Cowboy" Livingston, who pleaded guilty to First Degree Sexual Assault of a Child, a Class B felony that carries a potential prison term of 40 years (plus 20 years extended supervision).
Livingston was sentenced by tough-on-crime Judge Gableman on January 26, 2005, to three years in prison and two years extended supervision. Livingston is out of prison now, and living in Danbury, WI. That's eight child molesters and 97 years to go.
There are not a lot of registered sex offenders from Burnett County who've been sentenced during Gableman's tenure for crimes that could be considered child molesting. Hopefully Gableman's campaign will identify the individuals depicted and their whereabouts.
Setting aside the ludicrous grammar (Gableman is only 41), the sixth in the series appears to be Larry J. "Cowboy" Livingston, who pleaded guilty to First Degree Sexual Assault of a Child, a Class B felony that carries a potential prison term of 40 years (plus 20 years extended supervision).
Livingston was sentenced by tough-on-crime Judge Gableman on January 26, 2005, to three years in prison and two years extended supervision. Livingston is out of prison now, and living in Danbury, WI. That's eight child molesters and 97 years to go.
There are not a lot of registered sex offenders from Burnett County who've been sentenced during Gableman's tenure for crimes that could be considered child molesting. Hopefully Gableman's campaign will identify the individuals depicted and their whereabouts.
You stay classy, Mike Gableman
From the Associated Press:
Watch Gableman's class act at this link (.wmv; 31 secs.).
But give Gableman some credit for the opening sequence:
A new television ad in the state Supreme Court race misleads the public about Justice Louis Butler's role in defending a man accused of rape in 1984 when he was a defense lawyer. . . .Word, Sister.
"The ad seems to say he got him off. For God sakes [sic], that's terrible," said [former Wisconsin Supreme Court Justice and Dean of Marquette Law School Janine] Geske. "This ad is awful on so many levels, from misportraying the role of the Supreme Court, misportraying the role of the public defender, appealing to the fear of citizens. We're sinking to new lows."
Watch Gableman's class act at this link (.wmv; 31 secs.).
But give Gableman some credit for the opening sequence:
Unbelievable. It's not true!At least he got that part right.
Bush totally gay for war
If I were slightly younger and not employed here, I think it would be a fantastic experience to be on the front lines of helping this young democracy succeed. It must be exciting for you ... in some ways romantic, in some ways, you know, confronting danger. — President George W. Bush, 3/13/08As for me, "I used to be disgusted, and now I try to be amused," as the song goes, but I can certainly imagine many people being profoundly revolted by Bush's paean to "romanticism."
Vietnam veterans, for example, survivors of that conflict which was either too romantic or not romantic enough for Bush, Richard "Dick" Cheney, Rush Limbaugh, and the rest of the current cheerleaders and war profiteers who managed to avoid assignment to Southeast Asia in their salad days thanks to, in Limbaugh's case, a romantic boil on his big fat idiotic ass.
An astute observer reminds us that last April, First Lady Laura Bush thoughtfully informed the country that, "No one suffers more than the President and I do." No one.
That would exclude the bereaved families of both Americans and Iraqis, as well as the thousands returning home without legs, eyesight, or other essentials. Quite romantic, I'm sure all that must be. One is nearly inspired to compose a dainty verse to a flower.
"If I were not employed here ..."
A 'mission accomplished' that can't happen soon enough.
Mrs. Spitzer to blame: Moralist
Professional self-appointed moralist and scold "Dr." Laura Schlessinger tells NBC's The Today Show that Silda Wall Spitzer, the better half of former New York Governor Eliot Spitzer, drove the hubster to expensive extracurricular horizontal mambo-ing by failing to sufficiently submit to Eliot's connubial requirements:
* NSFW, unless you work for Vivid Video or Congress.
When the wife does not focus in on the needs and the feelings, sexually, personally, to make him feel like a man, to make him feel like a success, to make him feel like her hero, he’s very susceptible to the charm of some other woman making him feel what he needs.Schlessinger, an Old Testament religious conservative who earned her degree in physiology by methodically picking the legs off of insects, can be viewed catering to a former boyfriend's needs and feelings, complete with 70s porn-bush beaver shots, at this link.*
* NSFW, unless you work for Vivid Video or Congress.
Preachers gone wild
The latest right-wing consternation has to do with a fellow called Jeremiah Wright, who, they say, is Senator Barack Obama's "pastor." Some teevee clips have surfaced featuring Wright articulating radical politics and fulminating against social injustice in America.
The nut-wings are falling all over themselves insisting that Obama denounce Wright and all his works, because he spoke ill of the Bush administration's domestic policy, and we certainly can't have that.
Less consternation has been voiced over Obama's Republican presidential rival and fellow U.S. Senator, John McCain. McCain has lately been cavorting with John Hagee, a Grade-A delusional fundamentalist fruitcake and more recently yet another, Rod Parsley.
Parsley, who McCain describes as his "spiritual guide," raves and rants about Islam and calls on his fellow Christians to wage war against the competing Abrahamic religion, which he claims is "false." Few things are as ridiculous and amusing as one purveyor of superstition declaring it a better superstition than some other.
The Republican propensity for presidential "spiritual guides" dates back at least to the sainted Ronald Reagan, who consulted astrologers, Biblical prophecy, and other styles of necromancy to determine foreign policy.
Why is anybody surprised by preachers talking nonsense? Talking nonsense is what they do for a living. People should be more concerned about presidents and presidential candidates retaining "spiritual guides," if you ask me. That's what's disturbing.
This country was founded on principles of reason during the Age of Enlightenment. Why drag it back into the dark ages now.
The nut-wings are falling all over themselves insisting that Obama denounce Wright and all his works, because he spoke ill of the Bush administration's domestic policy, and we certainly can't have that.
Less consternation has been voiced over Obama's Republican presidential rival and fellow U.S. Senator, John McCain. McCain has lately been cavorting with John Hagee, a Grade-A delusional fundamentalist fruitcake and more recently yet another, Rod Parsley.
Parsley, who McCain describes as his "spiritual guide," raves and rants about Islam and calls on his fellow Christians to wage war against the competing Abrahamic religion, which he claims is "false." Few things are as ridiculous and amusing as one purveyor of superstition declaring it a better superstition than some other.
The Republican propensity for presidential "spiritual guides" dates back at least to the sainted Ronald Reagan, who consulted astrologers, Biblical prophecy, and other styles of necromancy to determine foreign policy.
Why is anybody surprised by preachers talking nonsense? Talking nonsense is what they do for a living. People should be more concerned about presidents and presidential candidates retaining "spiritual guides," if you ask me. That's what's disturbing.
This country was founded on principles of reason during the Age of Enlightenment. Why drag it back into the dark ages now.
March 13, 2008
Unlawful Purposes, LLC
I wonder if anyone's sued the State of Wisconsin* on a First Amendment theory for not allowing them to use that as their corporate name. Good name for a blog, anyway. If anyone's interested, help yourself, but put me on your blogroll.
* For unlawful porpoises, see Fla. Stat. § 370.12 (2003).
* For unlawful porpoises, see Fla. Stat. § 370.12 (2003).
Burnett County: Litigation hell
Gableman upheld on 9,000 uncontested traffic tickets
Better record than the Ninth Circus, says StopTheACLU.com
Darrin Schmitz, the professional Republican "persuader" who is coordinating the election campaign of Burnett County Judge Michael Gableman, tells us that Gableman has "presided over" 23,545 cases. He uses this figure to compare against Gableman's reversals on appeal, and calculates the judge's reversal rate thereby at .02%
During the calendar years 2003-2007 inclusive, for example, the Burnett County (pop. 16,595) Circuit Court disposed of 8,800 uncontested traffic tickets. Is Gableman seriously counting uncontested traffic tickets to calculate his reversal rate?
Because when you're calculating a judge's relative success on appeal, you probably don't get to include for uncontested traffic tickets, the statistical likelihood of whose appeal approaches roughly zilch.
It's also a rather unusual method of response to someone else's calculation of your man's reversal rate that you feel is unfair. It's especially unusual in light of Gableman's own portrayal of Supreme Court Justice Louis Butler's record:
All of which is made the more amusing by Schmitz's self-righteous railing about 'outright lies' and 'patent and demonstrative falsehoods.' Because if Schmitz is using uncontested traffic tickets to arrive at Gableman's advertised reversal rate on appeal of .02%, then it seems to me he's made a demonstrable falsehood of his own right there.
What's particularly significant, however, is that Darrin "The GOP Persuader" Schmitz is howling against a third-party interest group, which even Justice Butler has denounced, whereas Schmitz's data is issuing directly from the Gableman campaign itself.
Better record than the Ninth Circus, says StopTheACLU.com
Darrin Schmitz, the professional Republican "persuader" who is coordinating the election campaign of Burnett County Judge Michael Gableman, tells us that Gableman has "presided over" 23,545 cases. He uses this figure to compare against Gableman's reversals on appeal, and calculates the judge's reversal rate thereby at .02%
During the calendar years 2003-2007 inclusive, for example, the Burnett County (pop. 16,595) Circuit Court disposed of 8,800 uncontested traffic tickets. Is Gableman seriously counting uncontested traffic tickets to calculate his reversal rate?
Because when you're calculating a judge's relative success on appeal, you probably don't get to include for uncontested traffic tickets, the statistical likelihood of whose appeal approaches roughly zilch.
It's also a rather unusual method of response to someone else's calculation of your man's reversal rate that you feel is unfair. It's especially unusual in light of Gableman's own portrayal of Supreme Court Justice Louis Butler's record:
Gableman said the [sided with criminals] 60% [of the time] figure came from a study by an outside group.Good thing he's not running for State mathematician.
"I don't know if the number is 30%, 60%, 80%, or 90%," [Gableman] said, before adding, "I'm unaware of any study that contradicts those numbers."
All of which is made the more amusing by Schmitz's self-righteous railing about 'outright lies' and 'patent and demonstrative falsehoods.' Because if Schmitz is using uncontested traffic tickets to arrive at Gableman's advertised reversal rate on appeal of .02%, then it seems to me he's made a demonstrable falsehood of his own right there.
What's particularly significant, however, is that Darrin "The GOP Persuader" Schmitz is howling against a third-party interest group, which even Justice Butler has denounced, whereas Schmitz's data is issuing directly from the Gableman campaign itself.
March 12, 2008
Gableman up close and personal
Courtesy of Milwaukee Atty. Mike Plaisted, who attended the Bar Association event this afternoon:
It's disgraceful, is what it is.
During the whole forum, Justice Butler tried to draw Gableman out on what exactly is wrong with the decisions of the Court that have provided false fodder for Gableman and his third-party handlers. For instance, in the Brown case (the sexual predator that didn’t get released, although the Farrow/Gableman fundraising letter said he did), how would Gableman have ruled differently and how would he have ignored state statutes to get there? In the Jensen case, would Gableman have joined the majority in making up new law out of whole cloth to get to the desired result? How and by what analysis, Butler wanted to know, would Gableman "legislate from the bench" to reach his desired result?Not a word of this surprises me. Although I would additionally argue that in this election campaign, presenting the results without having done the analysis is per se mispresentation and moreover, deliberate misrepresentation because those results are intentionally portrayed in the worst possible light, in ignorance of the case analysis.
Gableman ignored all this, of course — the law and legal reasoning being, apparently, for suckers. * * *
After an hour of banging his head against this wall, Butler said that either Gableman hasn’t done the analysis or he is deliberately misrepresenting the results. Here’s one vote for him never bothering with doing the analysis. Mike Gableman is not someone to let himself get confused by the facts. Or the law, for that matter.
It's disgraceful, is what it is.
Gableman v. Numbers
I sincerely hope something got lost in the translation here, but the Journal-Sentinel's Greg Borowski tells of a candidates' encounter at the Milwaukee Bar Association today, where Burnett County Judge Michael Gableman reportedly said the following:
In other words, his unawareness evidently extends to the whole shootin' match. How exactly is this person qualified for the State Supreme Court? I've not seen even a remote inkling of a good reason, but there sure are a whole hell of a lot of really bad ones.
h/t capper.
[Wisconsin Supreme Court Justice Louis] Butler pointed to Gableman's statements that Butler has sided with criminals 60% of the time. Butler said he had reviewed all the cases since he joined the bench, and found he upheld criminal convictions 75% of the time.Is that supposed to be some kind of a joke?
The percentage would be higher, he said, if appeals not accepted for review had been included.
Gableman said the 60% figure came from a study by an outside group.
"I don't know if the number is 30%, 60%, 80%, or 90%," he said, before adding, "I'm unaware of any study that contradicts those numbers."
In other words, his unawareness evidently extends to the whole shootin' match. How exactly is this person qualified for the State Supreme Court? I've not seen even a remote inkling of a good reason, but there sure are a whole hell of a lot of really bad ones.
h/t capper.
A message to you, rude boy
My buddy and fellow discerning musicologist the Brew City Brawler this morning links to a live version of Concrete Jungle by The Specials, one of my favorite bands.The Specials were the best of a number of British Ska outfits that flourished in the early 80s. They put out two excellent albums, a self-titled debut followed by More Specials, and a bunch of singles before splitting up and pursuing a number of individual projects.
The Specials, which is one of the greatest party records ever made, was produced by Elvis Costello, production which, according to one of the band members, consisted mostly of EC's laying under the mixing board with a bottle of vodka.* (EC will be back in Milwaukee this summer opening for The Police, which is a bit surprising because he once opined that Sting should be beaten about the head and shoulders for 'singing with that ridiculous fake Jamaican accent.')
All of which reminds me of my own Specials story. Several years ago when I was in London I learned that another of my musical heroes, the legendary and reclusive Mancunian "punk poet" John Cooper Clarke, was appearing at a pub in Camden Town. Clarke was opening for a band I'd never heard of, but was advertised as comprised of former members of The Specials and their erstwhile 2 Tone label mates Madness and The Selecter.
I was in the neighborhood already so I headed to the pub early with a few newspapers and found a comfortable spot at a picnic table outside the establishment. In due course a bunch of people came along and asked me whether anyone else was sitting at the table. Nope, I said, help yourself, which they did, and proceeded to animated conversation.
I don't normally eavesdrop, but it soon became apparent that these folks were the headliner that evening. A bit later, I found myself in the men's loo having a slash beside one of them, and I asked him which of the 2 Tone bands he was previously a part of. Turns out he was John Bradbury, The Specials' drummer. One of the most — if not the most — distinctive features of The Specials' first record is the drumming; just the sound of the snare drum is fabulous.
"Holy shit," I said, "You're the guy who played drums on Monkey Man? That is one of the finest performances evar!" So we all ended up having a hell of a time back at the picnic table, involving numerous pints of lager, bitter, and Guinness, and packets of crisps. Eventually they invited me inside for their sound check, where I insisted on more high end for the snare drum. We got it down perfect.
After all that was done, who should amble past my table but John Cooper Clarke. He's easy to spot because he's a little guy with a hairdo about seven feet in circumference. "Johnny Clarke!" He sits down and we shoot the breeze for about an hour, him amazed (and flattered) that here's this character from across the pond that can recite The Ghost of Al Capone in its entirety.
Paralysed in precious stoneHe even came back to continue the conversation after performing his hilarious and ingenious schtick, but the said conviviality was soon interrupted — enhanced, in Clarke's case, as it turns out — by a slightly inebriated and obviously enamored young woman, who helped herself to a seat on Mr. Clarke's lap. They disappeared together shortly thereafter, Clarke waving a bemused farewell to me.
Canonized - I stand alone
In the clouds of paradise - my home
A million orchids deck the throne
Of the man who numbered Al Capone
The man who numbered all his bones
In short, a splendid time was had by all.
* On further reflection, I believe this may have actually been Shane McGowan's characterization of EC's labors pursuant to the production of The Pogues' second record, Rum, Sodomy & The Lash.
March 10, 2008
More Gableman campaign irony
WISC-TV in Madison won't broadcast a pro-Michael Gableman advertising spot produced by an outfit called the Coalition for America's Families. For why? Because it's gruesome and might affect the families of the parties involved in the case. The Coalition already had problems with the ad in Green Bay because it contained potentially defamatory language. What a circus.Source: Armstrong ad won't run.
March 9, 2008
Certainly not by reason alone
A "right-wing Christian" offers the following meditation this morning:
Among the stranger interpretations of Christian doctrine is the one whereby the adepts are "saved by faith alone" as opposed to by works, which Jesus tends to downplay, since they lead a man to boast (as if an omniscient being wouldn't be hip to the motivation).
The potential conclusion to all this, of course, is that the Memphis man, by means of the appropriate expressions of faith, winds up frolicking gaily on the Elysian Fields while those of us not accepting Christ as our personal Saviour — for whatever reason — find ourselves writhing in perpetual agony on the eternal rotisserie no matter our positive attributes (such as a commendable facility in resisting urges to shoot and stab other people to death).
Apparently this is justice from an inspired perspective.
Who hath saved us, and called us with an holy calling, not according to our works, but according to his own purpose and grace, which was given us in Christ Jesus before the world began. — 2 Timothy 1:9Only hours ago, the same penitent described a Memphis man whose works include allegedly shooting and stabbing six people to death as a "piece of trash" and "garbage" who deserves to be put to his own expedited death by the government.
Among the stranger interpretations of Christian doctrine is the one whereby the adepts are "saved by faith alone" as opposed to by works, which Jesus tends to downplay, since they lead a man to boast (as if an omniscient being wouldn't be hip to the motivation).
The potential conclusion to all this, of course, is that the Memphis man, by means of the appropriate expressions of faith, winds up frolicking gaily on the Elysian Fields while those of us not accepting Christ as our personal Saviour — for whatever reason — find ourselves writhing in perpetual agony on the eternal rotisserie no matter our positive attributes (such as a commendable facility in resisting urges to shoot and stab other people to death).
Apparently this is justice from an inspired perspective.
A Wisconsin birthday
LA County deputy DA Marcia Clark asks professional houseguest Brian "Kato" Kaelin about a trip to McDonald's in O.J. Simpson's Rolls Royce,* and Kato answers in the form of a question, March 22, 1995:
* Kaelin thought it was a Rolls Royce, but it was a Bentley.
Q. He seem real excited to have you come?Kato Kaelin was born in Milwaukee on this day in 1959.
A. Wouldn't you?
* Kaelin thought it was a Rolls Royce, but it was a Bentley.
Your daily irony
If you spend all of your time and resources responding to these negative, slimy attacks, you're not doing the best job you can in terms of delivering your own positive message.
— Republican "Persuader" Darrin Schmitz
March 8, 2008
Milwaukee's loss
Is Philadelphia's gain:
It's fortunate for Mr. Nunnally, I assume, but it's a drag for us. He did a fine job, was comprehensive in his coverage, and always wrote with wit and style. Good luck to Derrick in Philly, which has more crime, but less Mike McGee.
Please excuse The Docket's unexplained recent hiatus. Chief blogger Derrick Nunnally has moved on to report for the Philadephia Inquirer, but we will try to continue highlighting items you've come to look for here.That's from yesterday's Milwaukee Journal-Sentinel Proof & Hearsay weblog, which covers the courts.
It's fortunate for Mr. Nunnally, I assume, but it's a drag for us. He did a fine job, was comprehensive in his coverage, and always wrote with wit and style. Good luck to Derrick in Philly, which has more crime, but less Mike McGee.
How readest thou the law?
Four years ago Victor DeLeon of Texas died following a loud thump. The said concussion was caused by his unfortunate contact with Lorena Guerra's Ford Expedition, which was observed moving away from the scene at a high rate of speed. Ms. Guerra was charged and convicted under Tex. Transp. Code Ann. § 550.023, a "Good Samaritan" law which imposes the duty to stop and render aid.
Ms. Guerra appealed her judgment of conviction on a number of grounds, including an asserted fundamental constitutional right "to be left alone" and the claim that § 550.023 impermissibly codified Christian doctrine in violation of the First Amendment's Establishment of Religion Clause.
As to the former, the appeals court reasoned, "Taken to its logical conclusion, Guerra is asserting a fundamental right to hit someone with her vehicle and not stop and provide any assistance to the victim." Because it could find no textual or other support for this proposition — not even in Ms. Guerra's own presentations — the court rejected that claim.
Ms. Guerra's Establishment Clause argument consisted of portraying
§ 550.023 as “imposing Christian conduct, custom, philosophy and principles to all drivers." The court similarly found this claim to be without merit, because laws do not respect an establishment of religion when they simply happen to coincide with religious beliefs.
Which just goes to show you, religion has no monopoly on good conduct, not even in Texas. Guerra v. State.
h/t Prof. Friedman.
Ms. Guerra appealed her judgment of conviction on a number of grounds, including an asserted fundamental constitutional right "to be left alone" and the claim that § 550.023 impermissibly codified Christian doctrine in violation of the First Amendment's Establishment of Religion Clause.
As to the former, the appeals court reasoned, "Taken to its logical conclusion, Guerra is asserting a fundamental right to hit someone with her vehicle and not stop and provide any assistance to the victim." Because it could find no textual or other support for this proposition — not even in Ms. Guerra's own presentations — the court rejected that claim.
Ms. Guerra's Establishment Clause argument consisted of portraying
§ 550.023 as “imposing Christian conduct, custom, philosophy and principles to all drivers." The court similarly found this claim to be without merit, because laws do not respect an establishment of religion when they simply happen to coincide with religious beliefs.
Which just goes to show you, religion has no monopoly on good conduct, not even in Texas. Guerra v. State.
h/t Prof. Friedman.
March 7, 2008
Gableman surrogates: None too bright
When criticizing a judge for overturning a criminal conviction, you don't get to simultaneously re-convict the defendant of committing the crimes for which the conviction was overturned. Because that's what's known in the trade as defamation. Not to mention stupidity.Group revises Supreme Court ad after station pulls it
The Coalition for America's Families revised the wording Friday afternoon to say Armstrong had once been convicted of rape and murder.D'oh. Fortunately stupidity isn't actionable, generally. Yes, yes, Kent Hovind is in federal prison, but that's for income tax evasion.
(Ever notice how these outfits with "family" in the title are often shameless dissemblers of the lowest order? I sure have.)
And in other GOP family values news:
Prosecutors have refiled child enticement charges against the former head of the Brown County Republican Party.Green Bay (WI) Press Gazette.
Donald Fleischman, 37, of Allouez, who resigned his post with the Brown County Republicans in September, is accused of fondling a 16-year-old runaway and providing the boy with beer and marijuana late last year.
Wait, wait, don't tell me — Louis Butler's going to singlehandedly release him into Milwaukee County.
eta: Frederica Freyberg's interview this evening with Michael Gableman is available for viewing at this link.
A note to Ms. Freyberg: The defamation contemplated by WBAY attorneys in the Coalition for America's Families teevee spot was not against Justice Butler, but rather against the defendant whose conviction was overturned.
More noteworthy is Gableman's seemingly tempering his previous claims that his judicial decision making will be in "stark contrast" to Justice Butler's. Too much like a promise, perhaps?
Now he is merely pointing out that his career background as a lawyer for the State is a "stark contrast" to Butler's experience in criminal defense (prior to Butler's 17 years as a judge, that is, which happens to be longer than Gableman has been practicing law in total).
Less significant, athough significant nonetheless, was Gableman's apparent failure to observe the potentially defamatory nature of the Coalition for America's Families advertisement, despite admitting he'd watched it just before coming on Ms. Freyberg's programme.
You'd think convicting someone of a crime whose conviction had been overturned (the whole point of the ad) would raise a big red flag for a judge, especially one so qualified for the State Supreme Court.
March 6, 2008
WISC fisks a Gableman spot
Madison's CBS teevee affiliate, WISC, takes a look at a pro-Michael Gableman spot produced by the conservative Club For Growth:
Not knowing the details, Gableman may have accepted a misdemeanor guilty plea rather than pursuing a felony conviction at trial in order to, for example, protect a child victim from testifying under cross examination, often not a pretty sight.
Also, "countless" = 23.
"Criminals threaten our communities. Oddly enough, so do some judges who return them to the street," the ad says. "But not Judge Michael Gableman. He's a former prosecutor who has gone toe to toe with the arsonists, sexual predators, domestic abusers and white-collar criminals who belong in jail."Tough on crime? Since when did conservatives consider prosecutors bargaining felonies (more than a year in State prison) down to misdemeanors (less than a year in county jail) tough on crime?
A closer look at Gableman's record shows limited experience in these types of cases. Gableman was the district attorney in Ashland County from 1999 to 2002. He only prosecuted one arson case, which was ordered an acquittal.
In 19 felony child abuse cases, three were dismissed, 13 pleaded out to misdemeanor crimes, two were found not guilty at trial and only one was sentenced to prison time.
In felony sexual assault of children cases, Gableman got 11 convictions out of 31 cases, and 15 cases were pleaded to misdemeanors.
Not knowing the details, Gableman may have accepted a misdemeanor guilty plea rather than pursuing a felony conviction at trial in order to, for example, protect a child victim from testifying under cross examination, often not a pretty sight.
The focus on criminal cases in the ad mischaracterizes the job of a Supreme Court justice. The Supreme Court decides constitutional questions, and it doesn't hand out sentences like a Circuit Court.Isn't that cute, misrepresenting the very job you're presenting your man as eminently qualified for (while sales-puffing his experience).
Also, "countless" = 23.
Waterlogged straw man sinks in think tank
A man in a "think tank" opines, purportedly in addressing supporters of appointing — rather than electing — State Supreme Court Justices:
While truly impartial justice may be an unattainable ideal, it's an ideal nonetheless, and ideals are not so easily discarded by people clutching soggy straw men in so-called think tanks.
(Hey, at least Patrick McIlheran is impressed.)
The conceit inherent in their position lies with their elevated view of the Supreme Court. Supporters of appointed judges apparently believe in the concept of "judicial supremacy," which gives the Court heightened importance over the other two branches of state government.Um, no. It has to do with the unique role of judges compared to politicians bought and paid for by interest groups, not their "heightened" or "supremist" role. But thanks for coming out.
While truly impartial justice may be an unattainable ideal, it's an ideal nonetheless, and ideals are not so easily discarded by people clutching soggy straw men in so-called think tanks.
(Hey, at least Patrick McIlheran is impressed.)
Gableman's distinguished service
There was an interesting editorial the other day in the Dunn County News dealing with the Butler/Gableman campaign, and in particular criticisms leveled at Wisconsin Supreme Court Justice Butler by challenger Michael Gableman and his surrogates and supporters. The editorialist(s) write:
During it, Gableman repeatedly and baselessly derided Butler for grounding judicial opinions in the latter's "personal sympathies or feelings." Even the more sensible Butler critics, such as Marquette Law School's Rick Esenberg, will tell you that the results Gableman has in mind are defensible according to legal rationales. But Gableman's foolish and insulting characterizations are not.
The State Bar is hosting a formal debate between the candidates in Madison on March 25, and I sincerely hope someone gets up and expressly challenges Gableman on his evidence-free assertions. If Gableman is any kind of judge at all, he would never let a lawyer get away with comparable claims during, for example, a trial. And this campaign is essentially Gableman's own trial.
So somebody please put him on cross (without putting him on a cross; that only feeds the conservative persecution complex).
Meanwhile, the diligent investigators at One Wisconsin Now have uncovered more fascinating tidbits pursuant to what they call "Gableman's Suspicious Appointment" to his current Burnett County judgeship. The appointment, which was made by former Republican Governor Scott McCallum contrary to the procedures set in place by the governor's own executive order, has since been defended by Gableman in terms of McCallum's appreciation for the judge's "service" on a couple of statewide committees.
OWN obtained the minutes of one of them, the Wisconsin Judicial Council, and it turns out that of seven monthly meetings held between November 16, 2001, and May 17, 2002, Gableman only managed to turn up at two of them.
It would appear that Gableman's service, in this case, was distinguished primarily by his remarkable absence from it.
Quips blogger coldH20, "I guess he was Albert Einstein & Steven Hawking during those two meetings." Well, not exactly. Apart from once seconding someone's else's motion, the only other notable reference to Gableman in the 30 pages of meeting minutes concerns his request to be appointed to one of the Council's committees.
One would hope there was more to Gableman's involvement with the Council than that — he modestly describes himself as a "past member" at his campaign website — but OWN's evidence doesn't point to anything particularly distinguished about it.
So, scratch that "service" as one of the reasons Gableman finds himself on the county circuit court bench. And add it to the reasons why he shouldn't be elected to the State Supreme Court.
eta: Brazen Maverick spots a Gableman spot.
[Please visit the iT Butler/Gableman archive.]
Criticism of Butler’s vote on a certain case is only valid if a critic makes a legal argument that Butler applied the law incorrectly. It is not valid to complain that his vote did not produce the result the critic preferred.That's a fair assessment. Gableman has been making these sorts of charges against Butler at least since the two appeared for an online debate in January.
During it, Gableman repeatedly and baselessly derided Butler for grounding judicial opinions in the latter's "personal sympathies or feelings." Even the more sensible Butler critics, such as Marquette Law School's Rick Esenberg, will tell you that the results Gableman has in mind are defensible according to legal rationales. But Gableman's foolish and insulting characterizations are not.
The State Bar is hosting a formal debate between the candidates in Madison on March 25, and I sincerely hope someone gets up and expressly challenges Gableman on his evidence-free assertions. If Gableman is any kind of judge at all, he would never let a lawyer get away with comparable claims during, for example, a trial. And this campaign is essentially Gableman's own trial.
So somebody please put him on cross (without putting him on a cross; that only feeds the conservative persecution complex).
Taking judicial attendance
Meanwhile, the diligent investigators at One Wisconsin Now have uncovered more fascinating tidbits pursuant to what they call "Gableman's Suspicious Appointment" to his current Burnett County judgeship. The appointment, which was made by former Republican Governor Scott McCallum contrary to the procedures set in place by the governor's own executive order, has since been defended by Gableman in terms of McCallum's appreciation for the judge's "service" on a couple of statewide committees.
OWN obtained the minutes of one of them, the Wisconsin Judicial Council, and it turns out that of seven monthly meetings held between November 16, 2001, and May 17, 2002, Gableman only managed to turn up at two of them.
It would appear that Gableman's service, in this case, was distinguished primarily by his remarkable absence from it.
Quips blogger coldH20, "I guess he was Albert Einstein & Steven Hawking during those two meetings." Well, not exactly. Apart from once seconding someone's else's motion, the only other notable reference to Gableman in the 30 pages of meeting minutes concerns his request to be appointed to one of the Council's committees.
One would hope there was more to Gableman's involvement with the Council than that — he modestly describes himself as a "past member" at his campaign website — but OWN's evidence doesn't point to anything particularly distinguished about it.
So, scratch that "service" as one of the reasons Gableman finds himself on the county circuit court bench. And add it to the reasons why he shouldn't be elected to the State Supreme Court.
eta: Brazen Maverick spots a Gableman spot.
[Please visit the iT Butler/Gableman archive.]
Another neocon double standard
Milwaukee blogger and funkmaster the Brew City Brawler raises a valid question which shames me that I didn't think of meself, since it's right up in one of my favorite bailiwicks.
About a year ago, then-presidential candidate John Edwards became involved in a PR kerfuffle over his association with one Amanda Marcotte, whom he'd hired as a campaign staffer. It seems Ms. Marcotte, at her own blog Pandagon, had penned somevulgate vulgar characterizations of the Catholic Church's teachings on contraception (together with at least one accurate one: "ancient mythology").
At the time, naturally, the conservative blogosphere went into Gamma 9 outrage mode over Marcotte's rhetoric. Even beloved Milwaukee Journal-Sentinel "right-wing guy" Patrick McIlheran delighted in further limning the association between Marcotte and Edwards. (Via, incidentally, the idiotic National Review Online scribe Kathryn Jean Lopez, the likes of whom must have sent NR founder William F. Buckley, Jr. spinning into his grave.)
Nowadays, however, there issues nary a peep nor squeak from McIlheran over fellow right-wing guy John McCain's embrace of the "Reverend" John C. Hagee, a Texas-sized fundamentalist buffoon with a Satan-sized distaste for the Vatican.
This is no wiseass feminazi blogger lambasting the Pope's designs on her fallopian tubes, this is a devout and inspired Man of Christ speaking further to the inerrant authority of God's Holy Word.
Whither McIlheran, the Brawler wonders. Apparently McIlheran has been otherwise engaged in a mini-crusade of his own, in a failed attempt at making a religious hypocrite of former Secretary of State Madeleine Albright.
McIlheran's problem, as usual, is that some of his readers are smarter than he is, in particular — not surprisingly — those that disagree with him. There's Andrew, for instance, who takes issue with McIlheran's impotent ploys:
About a year ago, then-presidential candidate John Edwards became involved in a PR kerfuffle over his association with one Amanda Marcotte, whom he'd hired as a campaign staffer. It seems Ms. Marcotte, at her own blog Pandagon, had penned some
At the time, naturally, the conservative blogosphere went into Gamma 9 outrage mode over Marcotte's rhetoric. Even beloved Milwaukee Journal-Sentinel "right-wing guy" Patrick McIlheran delighted in further limning the association between Marcotte and Edwards. (Via, incidentally, the idiotic National Review Online scribe Kathryn Jean Lopez, the likes of whom must have sent NR founder William F. Buckley, Jr. spinning into his grave.)
Nowadays, however, there issues nary a peep nor squeak from McIlheran over fellow right-wing guy John McCain's embrace of the "Reverend" John C. Hagee, a Texas-sized fundamentalist buffoon with a Satan-sized distaste for the Vatican.
This is no wiseass feminazi blogger lambasting the Pope's designs on her fallopian tubes, this is a devout and inspired Man of Christ speaking further to the inerrant authority of God's Holy Word.
Whither McIlheran, the Brawler wonders. Apparently McIlheran has been otherwise engaged in a mini-crusade of his own, in a failed attempt at making a religious hypocrite of former Secretary of State Madeleine Albright.
McIlheran's problem, as usual, is that some of his readers are smarter than he is, in particular — not surprisingly — those that disagree with him. There's Andrew, for instance, who takes issue with McIlheran's impotent ploys:
Trying to cast your critics as spiritual voids disrespectful to your particular religious creed is preposterous. Slinging these phony labels around only bolsters your "pity party" bunker mentality where the poor Christians are holding out against Nero and his immoral onslaught. Seriously ... where do you come up with this martyr complex? You're missing the point of my post, and twisting it, but I suppose that's what you're intending to do.Poor McIlheran, busted again. He really should just stick to the usual swooning manlove for Milton Friedman.
March 5, 2008
Creationist post of the week
Jonathan Wells is seriously one of the leading proponents of "intelligent design theory" (ID), which is just a fancy term for creationism. In other words, he's about as good as they've got (with all due respect to noted population geneticist Ann Coulter).Wells, who is a veritable fountain of disingenuous inanity and nonsense, wrote something especially ridiculous about his great Moonie bugaboo, evolution, the other day. And Larry Moran, a professor at the University of Toronto, has all the details, complete with all the relevant links, right here.
I'm not particularly fond of the epithet "IDiots," but if there was ever an instance that truly merited its justified and suitable application, this is unquestionably that instance.
While the ID lexicon contains a number of other fancy-sounding expressions such as "specified complexity," "explanatory filter," and so forth, evidently it doesn't allow for "irreducible embarrassment."
Bush XLIII fixin' for a coronatin' today
For more seamless photoshopping please see Why vote Democrat.
This post approved by
Americans For Bush-Hagee '08.
h/t grumps.
March 3, 2008
WI judges support Butler 24:1
The JS Online has a handy searchable database for comparing the official endorsements of both Wisconsin Supreme Court Justice Louis Butler and challenger Burnett County Judge Michael Gableman.
In response to Butler's new television ad, Gableman lieutenant Darrin Schmitz says, "A bi-partisan majority of sheriffs and district attorneys have spoken loud and clear that Judge Gableman is their choice for the Court; not Louis Butler. Slick television ads can’t erase a long record of anti-law enforcement decisions and loopholes."
Aside from the latter claim being comically preposterous (par for the course), Schmitz's "bi-partisan majority" can't touch the regard in which Butler is held by his professional peers, Wisconsin judges.
According to the database, Butler's April 1 retention is supported by 146 judges, compared to just six who favor Gableman. That's a ratio of 24:1. I respect law enforcement as much as the next guy, but if the fear — groundless or otherwise — is that Butler's jurisprudence makes their jobs more rigorous by holding their feet to the constitutional fire, then the civil libertarian in me says, so be it.
In response to Butler's new television ad, Gableman lieutenant Darrin Schmitz says, "A bi-partisan majority of sheriffs and district attorneys have spoken loud and clear that Judge Gableman is their choice for the Court; not Louis Butler. Slick television ads can’t erase a long record of anti-law enforcement decisions and loopholes."
Aside from the latter claim being comically preposterous (par for the course), Schmitz's "bi-partisan majority" can't touch the regard in which Butler is held by his professional peers, Wisconsin judges.
According to the database, Butler's April 1 retention is supported by 146 judges, compared to just six who favor Gableman. That's a ratio of 24:1. I respect law enforcement as much as the next guy, but if the fear — groundless or otherwise — is that Butler's jurisprudence makes their jobs more rigorous by holding their feet to the constitutional fire, then the civil libertarian in me says, so be it.
Hazelwood not high enough: Scalia
JUSTICE SCALIA: I assume the test is the person has to be high enough that it justifies holding the entire corporation. And I doubt whether a captain is -- is high enough.I thought the Captain was shitfaced.
Dana Milbank reports on Exxon v. Baker. Nearly 20 years later, The fishing industry is still seeking about three weeks worth of Exxon profits in punitive damages following the 1989 Valdez oil spill.
More on Exxon v. Baker at the Legal Information Institute.
"I said rum on the rocks, not run on the rocks."
folkbum senior
Jay Bullock's dad is in the hospital. Jay runs the massively popular Wisconsin blog folkbum's rambles 'n' rants and has been a kind and generous supporter of this writer since pretty much day one, for which I'm grateful. Here's wishing folkbum père a speedy recovery.
You can drop Mr. Jay a positive and hopeful thought in this thread.
You can drop Mr. Jay a positive and hopeful thought in this thread.
March 2, 2008
Brawlin' the Shark
Enjoy.
The ol' Straight Talk Express has sure done a number of u-turns since 2000, when Senator McCain condemned the similarly idiotic sectarian policies of Bob Jones University as "not American." If the Straight Talk Express was anything but a metaphor, there'd be clear probable cause to pull it over on suspicion of drunken driving. — some wiseacre
This post approved by
Americans For Bush-Hagee '08.
The ol' Straight Talk Express has sure done a number of u-turns since 2000, when Senator McCain condemned the similarly idiotic sectarian policies of Bob Jones University as "not American." If the Straight Talk Express was anything but a metaphor, there'd be clear probable cause to pull it over on suspicion of drunken driving. — some wiseacreThis post approved by
Americans For Bush-Hagee '08.
Butler on Here and Now
State Supreme Court Justice Louis Butler appeared Friday on Wisconsin Public Television's Here and Now for an interview with host Frederica Freyberg. While the program repeats tonight at 10:30, the eight-minute segment is available at WPR's website here.
Butler discusses, among other things, the case of State v. Brown that's lately been causing a ruckus thanks to a number of questionable statements issuing from Butler's electoral rival, Michael Gableman and his supporters.
Gableman himself will be on Here and Now next Friday.
[Please visit the iT Butler/Gableman archive.]
Butler discusses, among other things, the case of State v. Brown that's lately been causing a ruckus thanks to a number of questionable statements issuing from Butler's electoral rival, Michael Gableman and his supporters.
Gableman himself will be on Here and Now next Friday.
[Please visit the iT Butler/Gableman archive.]
March 1, 2008
A faith-based plagiarist
Update: The original bust.
On the subject of plagiarism (a.k.a. "stealing"), a history instructor at Temple University offers some guidance to students with an example of acceptable paraphrasing using material from the novelist E.M. Forster. It just happens to be fortuitously à propos to the present circumstances:
* English public schools are the equivalent of U.S. private schools.
A longtime aide to President Bush who wrote occasional guest columns for his hometown newspaper resigned on Friday evening after admitting that he had repeatedly plagiarized from other writers. * * *Source: The New York Times.
[Timothy] Goeglein, 44, is little known outside Washington. He is a familiar figure to conservatives and evangelical Christians, who knew him as a spokesman for Gary L. Bauer, the conservative who ran for president in 2000.
When Mr. Bauer dropped out of the race, Mr. Goeglein signed on with Mr. Bush, eventually becoming a top aide to Karl Rove, the chief political strategist. He was the eyes and ears of the White House in the world of religious conservatives and an emissary to that world for Mr. Rove and the president.
On the subject of plagiarism (a.k.a. "stealing"), a history instructor at Temple University offers some guidance to students with an example of acceptable paraphrasing using material from the novelist E.M. Forster. It just happens to be fortuitously à propos to the present circumstances:
In his analysis of the English character Forster carefully considers the indictment of England as "the island of hypocrites," a nation of Empire builders "with a Bible in one hand, a pistol in the other, and financial concessions in both pockets." Although admitting the essential truth of this charge, he finds his countrymen guilty not of conscious hypocrisy but of "unconscious deceit" or "muddle-headedness"—a quality which the public schools* have helped to develop.For "England," simply substitute "the Bush administration."
* English public schools are the equivalent of U.S. private schools.
Gableman's Brown-out
Louis Butler provided the deciding vote to overturn a sexual predator finding by the circuit court resulting in the release of the defendant into Milwaukee County. — Michael GablemanAccording to this press release, One Wisconsin Now is set to file a complaint with the Wisconsin Judicial Commission over Burnett County Judge Michael Gableman's continuing portrayal of State v. Brown, a State Supreme Court opinion in which Justice Louis Butler joined the majority.
The Capital Times would appear to support it.
OWN suggests Gableman's description of the case runs contrary to a Wisconsin Supreme Court Rule which reads in part, "A candidate for a judicial office shall not ... misrepresent ... [a] fact concerning the candidate or an opponent."
I'm assuming the foregoing is supposed to apply to Gableman's claim of Butler's vote in Brown "resulting in the release of the defendant into Milwaukee County." Richard A. Brown is still in custody, and not even in Milwaukee County. He could die in custody tomorrow, for all we know, and never make it to town.
It's a fine point but the result Gableman describes hasn't occurred. In that sense it is a misrepresentation of a fact. I would go even further to say that Gableman doesn't know what's going to happen to Brown, nor where and how his supervised released will be administered.
Unless Gableman is seeking to add soothsayer to mindreader, among his catalog of remarkable propensities.
The other part of the Rule allegedly violated is quite a bit squishier: "A candidate for judicial office should not ... make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system."
He shouldn't, but he may.
That provision is practically impossible to enforce. Statements that arguably fall within its purview can only be corrected with other statements. And even then, there may be confusing statements made in multi-million-dollar advertising campaigns vs. some obscure blogger with half a dozen readers.
Presumably the portion of Gableman's claim that runs afoul here is "Louis Butler provided the deciding vote." Gableman has no idea how the court's deliberations in reaching the Brown result proceeded; they take place in private. But it's also difficult to say whether Gableman's statement had the effect of confusing the public. Maybe the public was already confused.
There's little doubt this case, and this language, was selected by the Gableman campaign to inflame, if not confuse, the public. On the other hand, anybody strolling around Water St. and E. Juneau Ave. of a mild Friday evening wouldn't notice one extra sex offender anyway.
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