March 31, 2008

Help prevent a tragedy — II

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.

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 ...

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.

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.

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.


To part 11 ...

Wigderson comes momentarily to senses

"Butler wins 55%-45%."

Jimmy the Wig handicaps tomorrow's field.

Developing ...

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:
[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.


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:
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.

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.
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.

(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!


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.


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.

March 29, 2008

CFAF "deemed" criminally inept: Part 7

31. State v. Anderson 2004AP2010-CR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


To part 8 ...

Found a blog

The Real Charlie Sykes.

Talking Heads — Found A Job

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.'


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.

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.
Enough said. Yet there is more to be said. Much more.

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.


To part 7 ...

From soup to nucking futs

See the update to this post:

Mmm mmm good.

Unbelievable. (Or is it.)

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:
There has also been much bickering back and forth over exactly how many criminal convictions Butler upheld during his time on the bench ...

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.
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.

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.

CFAF "deemed" criminally inept: Part 5

11. State v. Lackershire 2005AP1189-CR

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

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

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

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

12. State v. Howell 2005AP731-CR

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

13. State v. Post 2005AP2778-CR

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

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

14. State v. Nelis 2005AP1920-CR

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

15. State v. Johnson 2005AP573-CR

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

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

CFAF is denied any further alcohol.

16. State v. Townsend 2003AP000429-CR

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

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

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

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

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

17. State v. Jensen 2004AP002481-CR

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

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

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

18. State v. Bruski 2005AP1516-CR

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

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

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

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

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

19. State v. Muckerheide 2005AP81-CR

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

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

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

20. State v. Parent 2005AP661-CRNM

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

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

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

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

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



To part 6 ...