Loophole Gableman, Parte the Firste

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.

— Gableman campaign teevee ad script

Here's one of several highlights from the latest pleading in the case of Michael Gableman, the Wisconsin Supreme Court justice accused of violating the State Code of Judicial Conduct:

¶7. That "Butler found a loophole" in Reuben Lee Mitchell's case is true.

No, it isn't. It's false. Literally. By definition.

In fact, the opposite is true: It was the adverse party, the State of Wisconsin and not Louis Butler, which attempted to find a "loophole" in the rape shield statute (Wis. Stat. § 972.11(2)(b)).

Black's Law Dictionary, 7th ed., defines "loophole" as follows:

An ambiguity, omission, or exception (as in a law or other legal document) that provides a way to avoid a rule without violating its literal requirements ...

Finding a way to avoid the rule of evidence announced in the rape shield provision is exactly what the State of Wisconsin tried to do.

In appealing Mitchell's 1985 conviction for sexual assault, Butler did not find — nor did he even claim to find — an ambiguity, omission, or exception in the law. Neither was Butler attempting to demonstrate a way to avoid the literal requirements of the evidentiary rule.

Rather, he relied on that rule's literal requirements, which prohibit the introduction of evidence of the victim's prior sexual conduct.

Mitchell's defense lawyer at the trial (who was not Louis Butler) had several times objected to the introduction of that evidence, which objections were also based on the literal requirements of the rape shield provision, but was overruled. It was those determinations of the trial court judge that formed the basis for the appeal.

The court of appeals decided that not only was this evidence inadmissible — again, based on the literal requirements of the law — but also that it had prejudiced the jury to such an extent that Mitchell's conviction had to be reversed, which the court of appeals did, and ordered a new trial (no charges were lessened or dropped, as Gableman describes Butler's role elsewhere in the same pleading).

The State took it to the Wisconsin Supreme Court, which agreed with the court of appeals that the trial court had erred in admitting the evidence, but determined that that error was harmless as opposed to prejudicial and upheld Mitchell's conviction. It was before the Wisconsin Supreme Court that the State's attorneys argued in favor of "loopholes" overriding the plain language of the law.

Moreover, the (unanimous) Supreme Court found, among other things, that the legislature had originally drafted the rape shield provision as a response to an earlier decision of the Supreme Court (State v. Gavigan), and indeed had drafted it expressly to prohibit courts from reading exceptions ("loopholes") into the law.

It was such an exception unauthorized by statute — or "loophole" — that the State of Wisconsin, and not Butler, argued in favor of. The Supreme Court unanimously declined to accept the State's position.

Gableman's defense of the veracity of his television advertisement is based in a theory that each individually stated proposition contained in the ad is true, notwithstanding the fact that those statements viewed together in context themselves constitute the statement for which he stands accused of violating the Code of Judicial Conduct.

But according to the meaning of Michael Gableman's own carefully considered words and the case history upon which he depends,* not even the individual proposition he defends in ¶7 above is true.

Gableman pledged to apply the "plain language of the law" throughout his political campaign. Surely he should be held to that promise.

On the other hand, Gableman might maintain that his deliberate (and, as he admits, deliberative) choice of the term "loophole" wasn't limited to any technical, legally-defined sense, but instead was an appeal to some manner of squishier, vernacular understanding among his prospective audience of political supporters.

If so, then that line of semantic reasoning would place him at odds with his current, rigid theory of defense wherein the meaning of each individual proposition is strictly defined and discrete, and on a path toward at least a tacit admission that his considered intent was to misrepresent via ambiguity Louis Butler's involvement in Mitchell's appeal by suggesting a connexion between Butler's professional responsibilities and R.L. Mitchell's subsequent, unrelated offenses.

Either way, he's gone and got himself in quite the jackpot and I, for what's it's worth, am not real impressed with his defense even though it was formulated by the illustrious Hoosier, James Bopp, Jr.

To say nothing of his decision to even attempt a defense.

* ¶13. Justice Gableman made every reasonable effort to ensure that the Ad was accurate by ... [b]eing familiar with the Mitchell cases in general, with their facts and holdings, and the arguments advanced by Butler, who represented Mitchell.

Emphasis added.