Prosser and McCabe: One more thing

"Appalled" writes:

I don't know if "Illusory Tenant" is a lawyer or just someone who regularly stays at the Holiday Inn, but as an attorney it is truly frightening to think that [those comments about Justice Prosser and Mike McCabe] might have come from a fellow member of the Bar.

Justice Prosser did indeed "blow his stack" and anyone who defends his deplorable conduct does not have sufficient appreciation for and devotion to the adversarial system that relies on a contest between advocates representing their party's positions and then an impartial person or group of people trying to determine the truth.

Hang on just a minute there, counselor. I have plenty of appreciation for the adversarial system, much of it demonstrated herein.

However, first of all, this wasn't adversarial trial process, this was an open hearing on a series of proposed judicial ethics rules.

While there were a number of written petitions reflecting competing and even directly contradictory views filed with and defended before the Wisconsin Supreme Court, this was not a case of "Smith v. Jones" or "State v. Brown" where true adversaries in the legal sense are situated at either side of the versus.

Second, to whatever extent that Justice Prosser's conduct was "deplorable," I wasn't defending that. I was defending his reasons for getting upset, those reasons being a set of facts entirely separate from the demeanor of the speaker relating those facts.

Moreover I don't even find Prosser's conduct "deplorable," under the circumstances. That's his court, after all, and any lawyer — or any non-lawyer, like Mike McCabe* — who ventures into any court had better be well prepared for whatever dyspepsia a judge might or might not be affected by that morning. It's part of the job.

(And I'm here to tell you that — to cite but one of innumerable examples — an irate pipefitter superintendent makes even the grumpiest jurisprude look like Saint Francis of Assisi.)

But does the judge have a point, is the pertinent question. Yes, Justice Prosser did have a point, and a valid one in my estimation, as I explained pretty clearly. It doesn't much matter to me whether he expressed it placidly or hysterically (he was somewhere in between).

Yesterday in the Madison Capital Times Dave Zweifel also addressed the same episode. During Justice Prosser's questioning of Mr. McCabe, at least four matters were raised: (1) not hearing Scott Jensen's appeal (2) appearing as a witness at Scott Jensen's trial (3) so-called "thievery" and (4) a cup of hemlock.**

Notice Zweifel doesn't engage either (1) or (2), which were the particular topics this space took up, except to proffer this awkward grammatical construction:

Prosser [was willing] to testify on behalf of former Assembly Speaker Scott Jensen's misconduct in office trial, a move that startled the State's law enforcement community.

It's hard to tell what the object of "on behalf of" is in this sentence — Scott Jensen? misconduct? the trial itself? — but both the purpose and substance of that testimony are the subjects of reasonably differing interpretation and it's grossly unfair to impugn Justice Prosser purely for having delivered it.

Particularly as he was subpoenaed to do so.

You want to locate something to legitimately disagree with Justice Prosser about, go read the majority opinion he fully joined in State v. David S. Stenklyft (and then read the concurrences/dissents,*** to discover a constitutional lesson in adversarial process).

* The non-lawyers admitted inside the bar are more often the ones dressed in orange pants and chained to the floor.

** A reference to Plato's Phaedo, which originally had something to do with corrupting the youth of Washington County.

*** Jeff Sessions never heard about them from the Moonie Times.