The case concerned the admissibility at trial of evidence obtained through a surreptitious recording, the purely legal question being whether the recording constituted "oral communication" for the purposes of Wisconsin's Electronic Surveillance Control Law, which embodies a number of principles related to the right to privacy.
What Charlie Sykes doesn't tell you is that the defendant's initial motion to suppress the evidence so obtained was granted by the trial court judge, who subsequently reversed his own self after prosecutors refined their arguments in further motions.
The latter reversal by the trial court judge of his own original disposition was overturned by the District I Court of Appeals. It in turn was reversed by the Supreme Court, all of which might give even the casual observer some remote inkling of the highly technical, contentious nature of the fundamental legal questions at issue.
But I'd wager that Sykes & Co. would likely prefer not to draw any attention to the following illuminating tidbit from Judge Kessler's opinion, which appears toward the end of its fairly exhaustive 32-page analysis:
Consequently, we agree with the trial court's original conclusion* that [the defendant] had an objectively reasonable expectation that his communication with [the victim] would not be intercepted.I wonder why that is.
Could it be because the trial court judge was Michael B. Brennan, a prominent member of the Federalist Society and who, along with Sykes himself, has been a harsh critic** of "activist liberal judges"?
(The June '08 incarnation of the Wisconsin Supreme Court included both Chief Justice Shirley S. Abrahamson and perennial Sykes target-of-absurdist-fallacies Justice Louis B. Butler, by the way.)
Unfortunately, the underlying facts of this case revolve around the unquestionably reprehensible behavior of a public school bus driver toward a special-needs child. And the bus driver eventually pleaded guilty to felony (i.e., prison-eligible) child abuse, so the admissibility of the contested evidence at trial became a moot question anyway.
Judge Brennan (since returned to private practice) pronounced on the defendant all of six months in the Milwaukee County House of Correction and a few years of probation. A prison sentence was imposed but stayed, pending the defendant's satisfactory performance on extended supervision in the community.
As Charlie Sykes and his fellow travelers among the politically conservative intelligentsia [sic] will eagerly tell you, the particular personal circumstances of the parties should never be an issue, only the "plain language of the law," right? Uh huh. Sure thing.
Except, of course, when those circumstances conveniently lend themselves to fomenting cheap manufactured outrage among one's hysterically emotive fan base — that is, the ones who elect appellate judges without having the slightest clue as to what the job entails.
And why is there no commensurate antidote to Charlie Sykes's 50,000-watt opéra bouffe in this fine city? It certainly deserves one.
* Motion hearing, 09-03-2003, Branch 15.
** Compare Judge Brennan's considerably more thoughtful evaluations with Charlie Sykes & followers' invective-laden hyperventilating.
eta: More from Super Id.