It's little wonder Prosser lit into McCabe

Some observers made note of a testy exchange Wednesday between Wisconsin Supreme Court Justice David Prosser and activist Mike McCabe, at the court's public hearings on rules for judicial recusals.

Justice Prosser teed off on Mr. McCabe over several items the latter had published at his "Big Money Blog," which is part of McCabe's Wisconsin Democracy Campaign project (a useful resource, btw).

The justice was annoyed — to put it mildly — by McCabe's suggestion last June that Prosser was to sit in judgment of former State legislator Scott R. Jensen's criminal appeal, even though the record clearly shows as early as the preceding February that Prosser wasn't participating in the case.

Prosser and Jensen are estwhile colleagues in the Wisconsin State Assembly, where they served consecutively as speaker.

To make matters worse, after being notified by the Supreme Court, McCabe printed a correction the next day which, instead of leaving bad enough alone, sarcastically wondered whether Prosser was planning on appearing as a "character witness" on Jensen's behalf.

(At least, I assume it was sarcastic. Either that or McCabe believes "character witnesses" regularly appear at oral arguments before the State's highest appellate court. They do not.)

While it's true that Justice Prosser was a witness during Scott Jensen's trial at Dane County in 2006, Prosser was doing so under a subpoena — that is, an order of the court — to appear. The more serious problem with McCabe's sarcasm is that he quoted from the Wisconsin Supreme Court Rules, in particular a passage forbidding judges from "testify[ing] voluntarily as a character witness."

McCabe's implication — at least — is that Justice Prosser violated the code of judicial conduct in 2006 and was by McCabe's insinuation preparing to violate it again in 2009. One generally needs evidence for those sort of accusations, or at least supporting documentation that someone credible has made them.

But unfortunately McCabe didn't reproduce the comment below the rule (SCR 60.03(2)), which notes, "A judge may, however, testify when properly summoned." Which is to say, there is a considerable legal (and, by extension, ethical) distinction between testifying voluntarily and testifying after having been properly summoned.

And had McCabe undertaken one of those "Google is your friend" adventures, he would have easily discovered Justice Prosser telling then-Milwaukee Journal-Sentinel reporter Steven Walters, "I've been subpoenaed as a witness in a criminal trial, and witnesses are expected to cooperate."

Indeed, they are. At risk of contempt.

Moreover, and while I admit I don't follow these things as closely as many others do, it's not clear to me that Prosser was specifically called as a "character witness," although he reportedly fielded a question or two concerning Scott Jensen's character.

I could be mistaken, but it appears that Justice Prosser was solicited as a witness primarily to testify generally about so-called political campaigning* by lawmakers and their aides during his tenure as a Republican leader in the State Assembly.

That's another important distinction Mr. McCabe should have taken into consideration and I would distrust (both intuitively and from vast experience) any and all press descriptions of Prosser's status as a "character witness" — which is a legal term of art as it appears in the Supreme Court Rules — without more support.

I'm all for criticizing politicians (and, sad to say, judges in Wisconsin are undeniably also politicians) but when one ventures into substantive allegations, one had best do one's homework in advance.

And, unfortunately, at least one other local blog has repeated similar allegations of wrongdoing against Justice Prosser, and it's hoped that correctives are issued in light of the foregoing.

That would serve to defuse Prosser's larger point, which was that some of those who are purportedly concerned about public perception of fairness in Wisconsin courts are themselves occasionally engaged in unwarrantedly undermining that very perception. It's a fair cop.

Anyway, to make a long story even longer, I can't say I blame Justice Prosser one bit for blowing his stack at what quite obviously and evidently justifiably appear to him to be Mr. McCabe's sloppy reporting and insinuations of impropriety. So would anybody.

* I say "so-called" because there exists a reasonable difference of opinion as to what constitutes political activity within the context of attempts to codify its definition. At one end of the continuum are those whose view is that practically everything elected officials do counts as political activity. I'm sympathetic to those observations.

Which is one of the reasons why it seems to me that electing judges is not the most compelling among other potential mechanisms.

I believe I'm in alignment with the Federalists on that account (the actual, original Federalists, that is, not the "Federalist Society").

Also — Prosser and McCabe: One more thing