Out-of-State agitator seeks Bradley criminal charge

Among the right's relentless and speculative efforts to exonerate the documentedly anger-disposed Wisconsin Supreme Court Justice David Prosser (at left) from even a whiff of wrongdoing and instead hold an alleged victim of workplace violence responsible for and guilty of whatever transpired in Justice Ann Walsh Bradley's office on June 13, the latest is wing-nut professor William Jacobson's negligently disingenuous "theory."

Bradley may face obstruction charges, avers Jacobson, seizing on her use of the word "chokehold" in describing how Prosser came at her.

Blarghing desperately, Prof. Jacobson scours the literature in a facile attempt to implicate Justice Bradley herself of misdemeanor criminality. Contends Jacobson, if the contact made by Justice Prosser* does not conform to Jacobson's strict "legal" definition of "chokehold" culled from "police control procedures" and also the venerable treatise Wikipedia on Judo, then Bradley must be prosecuted to the fullest extent of the law.

"No one should be allowed to escape the consequences of Bradley's chokehold allegation, including Bradley," harrumphs the instructor.

Always thinking, these law professors! Sadly for Prof. Jacobson, a (the?) leading Wisconsin Supreme Court case on obstruction, State v. Reed (2005 WI 53), chokes off his own wing-nuttery. Were State prosecutors to press obstruction charges (§ 946.41(2)(a)) against Bradley per Jacobson's excited fantasies, they would face an insurmountable burden.

Reed unanimously affirms that among the elements the State needs to prove in a successful obstruction prosecution is that "[t]he defendant intended to mislead the [investigating] officer."** And according to the professor's fantasies, the State would further need to prove that Justice Bradley was mindful of Jacobson's technically restrictive understanding of "chokehold," and that Bradley deliberately eschewed Jacobson's definition for some more colloquial understanding. In other words, not quite the normal standard to which victims of alleged crimes are normally held.

Nor in fact Wisconsin's criminal defendants, for that matter.

Even assuming that Justice Bradley, in Prof. Jacobson's fevered dream of seeing her behind bars, must be held strictly to Jacobson's Wikipedia on Judo standard, that Justice Bradley further describes Justice Prosser placing both hands around her neck as a "chokehold," there is this:

Mistaken answers ... are not false statements made with intent to mislead the police. People can also disagree. People can have legitimate disagreements about what the facts are. People can also legitimately disagree on what the facts mean. Legitimate disagreements cannot form the basis for an obstructing charge.

Emphasis added. That's the law right now, in the State of Wisconsin. Which is to say, one person's both-hands-around-my-neck is another person's shime-waza (絞技), or yet another's police procedure manual.

Not only is there that but there is also this:

Knowingly made false statements that are not made with intent to mislead cannot form a basis for the charge of obstructing.

So in other words, even if Justice Bradley knowingly eschewed the pseudonymous internets contributors to Wikipedia on Judo and knowingly ascribed the description "chokehold" to a non-Jacobson-approved-both-hands-around-her-neck move, prosecutors would still need to prove — beyond a reasonable doubt — that Justice Bradley did so with the intent to mislead officers. Good luck with that one buddy.

If Jacobson expects all that to happen, then he's clearly gone 'round the bend. And indeed State v. Reed made the law more restrictive with respect to the rights of criminal defendants than it had been previously.

Prof. Jacobson should read State v. Reed not just to inform himself on Wisconsin law just in case he decides to go off an yet another ridiculous goose chase but to appreciate the clear, stepwise reasoning of former Justice Louis B. Butler, who wrote the majority opinion. Butler lost a close election in 2008 to Mike Gableman, after the latter deliberately and deliberatively lied about then-Attorney Butler's handling of a criminal appeal and Wisconsin Manufacturers & Commerce ran more than 3,000 broadcast ads criticizing a Butler dissent, the substance of which was affirmed by the most conservative members of the U.S. Supreme Court.

WMC did not similarly attack Scalia, Thomas, Alito, or Roberts.

Doing so would have been too logically consistent and honest and therefore violative of the strictest tenets of political conservatism in the current WISGOP mode, which favors both dishonesty and illogic.

Along the same lines, Justice Butler's opinion in State v. Reed adheres closely to traditional notions of conservative jurisprudence and indeed reverses an earlier Supreme Court case which had written into the obstruction statute an exception for "exculpatory denial[s]." Such exceptions, Justice Butler wrote, are best left for the legislature. Needless to say the cherry-picking practitioners of ad hominem fallacies at Wisconsin Manufacturers & Commerce never mentioned this case.

* No source denies Prosser came into physical contact with Bradley.

** Jacobson actually leaves this statutory provision out of his blog post.

The statute reads: "'Obstructs' includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process." At first glance it might seem that the "with intent to mislead" applies only to the "knowingly placing physical evidence." But that is not how we read the law. We read the law thus: "'Obstructs' includes without limitation knowingly giving false information to the officer ... with intent to mislead the officer in the performance of his or her duty ... " Based on Prof. Jacobson's truncated presentation of the obstruction statute, it appears he's made an egregious error in statutory construction, and the remainder of his reasoning — such as it is — obtains from that error.

Remarkably, Jacobson ignores the intent element altogether.

This is a professor of law, folks. Granted, a professor of law to the wing-nuts (check out the crazed commentary at Jacobson's blargh post).