Loophole Gableman, Parte the Seconde

While we wait for the Wisconsin Judicial Commission to schedule Michael Gableman's hearing before a three-judge panel in Waukesha County, we can have another look at Gableman's legal defense against his alleged violation of Wis. Stat. § 757.81(4)(a), willful judicial misconduct.

The following is from Gableman's Responsive Statement of Facts in Case No. 2008AP2458-J,* filed with the Supreme Court on Apr. 1, in rebuttal to the Commission's Statement of Facts, of Feb. 27:

9. The underlying facts giving rise to the Commission's Complaint are these:

D. Although urged by his campaign to release the responsive ad as soon as possible, Judge Gableman insisted first upon reviewing the entire video presentation because he wanted to make sure he understood what was going on, not just what the words in the ad were.

E. After receiving the text of the ad, and the video of the ad, Judge Gableman was not pleased with the "tone" of the ad.

F. Accordingly, Judge Gableman delayed the release of the ad for a week while trying to work out possible other endings to the ad. Ultimately, however, he did not make any changes.

Gableman's response:

Justice Gableman further disputes Paragraphs 9(D), (E), and (F) because they are misleading. Those Paragraphs are misleading because they do not set forth the fact that during the time leading up to the publication of the Ad, Justice Gableman sought to and did verify the accuracy of the Ad. See supra paragraph 13(a)-(b).

This is Gableman's paragraph 13(a)-(b):

13. Justice Gableman made every reasonable effort to ensure that the Ad was accurate by:

a. Obtaining assurances from campaign staff who had drafted the text of the Ad that an appropriate investigation into accuracy of the facts set forth in the Ad had been conducted.

b. Being familiar with the Mitchell cases in general, with their facts and holdings, and the arguments advanced by Butler, who represented Mitchell.

A couple of things first: As demonstrated earlier, Gableman was pretty clearly not as "familiar" with "the arguments advanced by Butler" in the Mitchell cases as he claims, otherwise he wouldn't have utilized the expression "legal loopholes," as he continues to do in his latest court filing.

(Gableman also claims that Butler "used" the law to "harm a rape victim." Yes, he's actually saying that now. Apparently this astonishing tactic failed to occur to him during the election.)

Second, it's irresponsible for a judge to rely on "campaign staff" assurances where the judge is the one governed by Supreme Court rules concerning the ethical conduct of elections. That this claim appears as an element of Gableman's "reasonable effort" seems to be only for the purpose of attempting to apportion some of the blame for Gableman's own actions onto the heads of his subordinates.

Elsewhere (¶ 15), Gableman claims he solicited "friends to view the Ad to address his concerns about the tone of the Ad." Whether Gableman's "friends" constitute an appropriate focus group under the circumstances is a separate subject for discussion, I suppose.

Nevertheless, Gableman has yet to document their reaction, so in the meantime, what these viewing parties have to do with Gableman's legal defense is anybody's guess. Because his friends said "Go for it"?

That's certainly no absolution for responsibility either.

Now, what Gableman is saying in his response to the Commission's 9(D), (E), and (F) is that each subparagraph describes one or more points in time, but their cumulative effect is "misleading" because a description of certain intervening events is missing.

This argument should sound ironically familiar because it's the same species of argument the Commission is advancing against Gableman and the collection of individual statements he made in his teevee advertisement:

Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.

That is, Michael Gableman wishes us to buy into his deployment of the argument, but not the Commission's, and furthermore in spite of the fact that Gableman's allegedly disparate collection of propositions was embedded in video production complete with, inter alia, side-by-side mugshots of R.L. Mitchell and Justice Butler, minor-tonality musical accompaniment, and bathetic narration.

As a matter of fact this is the basic thrust of Gableman's defense: That each of those four sentences are in and of themselves "true" — even though the third one, at least, is false by definition — and therefore any inferences drawn by a viewer connecting the statements are irrelevant for the purposes of interpreting the ethics provision Gableman is accused of violating.

It's exceedingly difficult to imagine anyone not making the connection so clearly intended by Gableman's teevee ad, that Butler's lawyering led directly to Mitchell's subsequent offense by "putting him on the street."

On that point, it's also worth mentioning — again — that Butler's appeal was based upon Mitchell's trial lawyer's objections to certain evidentiary (over)rulings made by the judge in the circuit court. Not to take anything away from Louis Butler, but he didn't exactly dream up the grounds for appeal out of whole cloth all by himself.

If Gableman's defense seems a little weak, that's because it is. The only thing it's missing is a deed to the Okefenokee Swamp.

I'm going to make a prediction, as it seems to me blindingly obvious that Gableman won't be able to sustain this ill-advised defense beyond his impending hearing. Gableman will end up copping to the "aspirational" (as opposed to its immediately preceding "mandatory") provision of Supreme Court Rule 60.06(3)(c):

A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

Don't forget, you heard it here first. Not that it should help him much anyway, because at least one of those representations is false.

* The WJC's next filing in the case is expected tomorrow.