More patent dishonesty from WMC

So James A. Buchen, one of the handful of characters in charge of Wisconsin Manufacturers & Commerce's political activities, claims that WMC "actively lobbied for final passage of the [University of Wisconsin] budget."

"But no such lobbying effort shows up in WMC's report to the state Government Accountability Board," according to the Milwaukee Journal-Sentinel's Patrick Marley.

Instead, Buchen points to one sentence from its Legislative Agenda, buried in a .pdf file deep within WMC's website.

Buchen was responding to outgoing UW Chancellor John D. Wiley's plangent asskicking that appeared online this morning.

Even better, Chancellor Wiley also accused WMC of engaging in personal attacks against former State Supreme Court Justice Louis Butler, which WMC unquestionably did.

Yet James Buchen flatly asserts, "WMC did not engage in personal attacks, and that is simply false."

Unfortunately for James A. Buchen, what's utterly false is his own statement. The truth is that in two of WMC's teevee ads, the business outfit did nothing except engage in personal attacks.

WMC's personal attacks are otherwise known as circumstantial ad hominem, a logical fallacy, in which WMC freely indulged.

A circumstantial ad hominem is one in which some irrelevant personal circumstance surrounding the opponent is offered as evidence against the opponent's position. This fallacy is often introduced by phrases such as: "Of course, that's what you'd expect him to say." The fallacy claims that the only reason why he argues as he does is because of personal circumstances, such as standing to gain from the argument's acceptance.

This is precisely what WMC did.

During this year's State election campaign, WMC produced and aired spots devoted to Justice Butler's lone dissenting opinion in a case called State v. Jensen. In that opinion, Butler enunciated an argument based on the Sixth Amendment to the Constitution and its history that was subsequently affirmed by the most conservative Justices of the United States Supreme Court in a similar case out of California.

However, rather than engaging Justice Butler's reasoning, WMC portrayed him as someone "delivering loopholes" and "siding with criminals who threaten our safety." In its other Jensen ad, WMC referred to the Sixth Amendment itself as a technicality, and suggested through its use of Butler's ancient nickname that Butler was actively seeking to find a "technicality" in the case.

Louis Butler, decades ago, worked for the Wisconsin State Public Defender. He earned the nickname, which WMC put to such shamelessly fallacious use, because he was good at that job. Even assuming that the task of criminal defense lawyers is "finding loopholes," it's completely irrelevant to the role of a Supreme Court Justice, who is an advocate for neither side in disputes.

Here are the texts of both WMC teevee spots:

We count on judges to use practical common sense to keep violent criminals behind bars. But faced with an unspeakable crime, Justice Louis Butler almost jeopardized the prosecution of a murderer because he saw a technicality. When prosecutors needed to show critical evidence, Butler dissented, going against six other Justices. Thankfully, he didn't get his way. Jurors said it was the most important piece of evidence they saw. Call Louis Butler. Tell him to stand up for victims, not technicalities.

We've heard it before. Judge cites loophole, sides with criminal who threatens our safety. Take Justice Louis Butler. His colleagues called him Loophole Louie. A woman beaten to death with a bat. Butler uses a loophole, suppressing critical evidence. A husband poisoned his wife. Butler cites a loophole, almost jeopardizing the prosecution. Butler doesn't mind being called Loophole Louie. He says it's affectionate. Call Justice Louis Butler. Ask him to deliver justice, not loopholes.

This is pure personal attack, nothing more. Neither ad says anything about the constitutional arguments Butler forwarded in his opinion in Jensen. Argumentation attacks arguments. Ad hominem attacks the person: personal attacks. That's what ad hominem means.

And you'll never hear a peep out of WMC that Justice Antonin Scalia arrived at the same conclusion as did Justice Butler based on the same constitutional principles and their historical antecedents.

Not loopholes, and not technicalities. The Sixth Amendment. And because the Sixth Amendment applies not only to the federal government but also to the States, Justice Scalia's opinion is now the law of the land. Justice Butler beat him to it, that's all.

UW Chancellor Wiley is entirely correct in characterizing James Buchen's attempt at defending WMC's personal attacks as "lame." In fact it's beyond lame. It's disingenuous and intellectually dishonest.

But there's nothing surprising about that, as the entire campaign against Justice Butler — including that of his politically motivated challenger — was marked by patent dishonesty from start to finish. And, evidently, it continues still, thanks to those who speak on behalf of Wisconsin Manufacturers & Commerce.

The lamest Gableman defense yet

An intrepid soul has ventured bravely forth in defense of Burnett County Judge Michael Gableman's freshly minted television ad which, as has been already observed, distorts reality in several decidedly reprehensible manners.

The said brave soul, Republican consultant Brian Fraley, helpfully informs us that "Louis Butler WAS, by choice, a public defender for many years and it looks like he did help a few scumbags get off."

Yes, Wisconsin Supreme Court Justice Louis Butler was a public defender 20 years ago. Thanks for that blinding glimpse of the obvious, and also for the absurd suggestion that there's something wrong with being one (the right to criminal defense counsel is explicitly guaranteed by the United States Constitution).

So Fraley thinks "it looks like" Louis Butler had some success as an attorney. Let's hope he did! I'm not aware of anyone who attended law school with a view to being a failure.

But does Fraley have any examples? Well, no. Only the so-called example contained in Gableman's ad, a case Butler had relatively little to do with. Butler was not even the defendant's lawyer during the initial proceedings. Butler filed an appeal of the original conviction, which was his job at the time, and won on a question of whether some evidence was legally admissible at trial.

However, Butler's efforts were ultimately for naught, because although the Wisconsin Supreme Court agreed the evidence in question was tainted, it found its effect on the jury was not prejudicial, and therefore upheld Reuben Lee Mitchell's conviction. That Mitchell served his initial sentence and then went on to re-offend had absolutely nothing to do with Louis Butler. Nothing.

Maybe Fraley doesn't know it, but there are laws in this country that govern what sort of testimony and evidence may be presented in court. It doesn't matter whether the defendant is an alleged child rapist or a homeless man who stole some loaves of bread from Panera's corporate headquarters. The principles are the same.

So Butler wasn't "working to put Reuben Lee Mitchell on the street," he was working to ensure another of Mitchell's constitutional rights, the one to a fair trial. Fraley and anyone else foolish enough to defend Gableman's teevee ad should take a look at the Bill of Rights sometime. They might be amazed at the number of protections that are extended to criminal defendants, let alone the panoply of more specific guarantees that arise from the Constitution's broad strokes.

And the public defender exists because the government has a lot of resources that the accused often doesn't have. The Framers of the Constitution, in their wisdom, knew this. But it would be unfair to cast Brian Fraley's understanding against that of, for example, James Madison, since few minds compare favorably with the latter's.

Next, quoting from some campaign propaganda received from the lovely and talented Gableman mouthpiece Darrin Schmitz, Fraley reminds us, in yet another glaring obviousness, that the public record is "fair game" and, by golly, even Louis Butler said so himself.

Well of course the public record itself is "fair game." But is it fair game to manipulate, distort, and constructively lie about the public record itself? Wouldn't that be the polar opposite of "fair game"? Why, yes, yes it would.

And that, believe it or not, is the entire substance of professional Republican consultant Brian Fraley's defense of Michael Gableman's disgraceful attack performance. One wonders why he decided to publish it in the first place. Far from being a defense, it's more like an expression of helpless embarrassment. And if that was not the intent, it certainly is the result.

The sole saving grace is that Fraley provided his sparkling analysis for free on the internets. Because in a more professional set of circumstances, Fraley's consulting firm, The Markesan Group, advertises first and foremost "Critical Thinking" services. Apparently you have to pay him for that. I sure as hell hope it's cheap, but not quite as cheap as Gableman's electoral strategy.

One thing is undeniable: Justice Louis Butler, in his constitutionally mandated former role, was a far more effective defender of the accused than is Brian Fraley of Mike Gableman's deliberate rubbish in his own present role as lame-o Republican apologist.

[Please visit the iT Butler/Gableman archive.]

A bit of Sunday insight

Marquette Law Professor Rick Esenberg reminds us that he'll be appearing today on Sunday Incite, the morning show hosted by Milwaukee squawking head Charles J. Sykes. So I thought I'd rise at stupid o'clock just in case Prof. Esenberg decides to check in with his favorite blogger first, and just in case the topic of the Wisconsin Supreme Court presents itself to Sykes & Co.

If both of those premises are satisfied, then perhaps Prof. Esenberg might be kind enough to keep the following thoughts in mind as he engages the said topic. I respect Prof. Esenberg, except he's got some decidedly unsavory friends. But whatever. Here's what he wrote about your humble correspondent last night:

[illusory tenant] wants to make [Louis Butler] look "good" in the sense of not [favoring criminal defendants].

Not exactly. Louis Butler does not need me, or anyone else, to make him look good. I entertain no such self-serving presumptions. In fact, it was never even my intent at all to follow this election campaign as closely as I have. However, beginning in November, when Burnett County Judge Mike Gableman first started circulating his facile misrepresentations of the law, I began to take notice.

As for "favoring criminal defendants," that whole idea, which Gableman and his deep pocketed supporters are attempting to make the central issue over — of all things — a seat on the Wisconsin Supreme Court, is itself facile and misleading.

It may be a slogan suitable to a campaign for district attorney, but practically ridiculous in the present context, considering the functions of the State's highest appellate court, which outright rejects the overwhelming majority of criminal appeals in the first place.

And Esenberg knows as well as anyone just how facile and misleading it is. The Gableman campaign and its surrogates are orchestrating a farce of the lowest order on the people of Wisconsin, if not the country: witness the attention this campaign is lately getting from Newsweek.

Look at Wisconsin Manufacturers & Commerce, Gableman's biggest supporter in terms of resources, which actually has the unmitigated temerity to portray the Confrontation Clause of the Sixth Amendment as a "needless technicality." How is one to react to that? With a combination of riotous laughter and abject horror, I should think. A provision of the Bill of Rights ... a needless technicality.

I don't know about Esenberg, who, let us not forget, has lent his considerable acumen to the WMC's campaign against Louis Butler, but I beg to differ. In my view, the U.S. Constitution is the product and expression of sheer political and legal genius, and it's practically impossible to overstate its importance.

I can barely believe my eyes, to see it reduced to a needless technicality. Every single person in this country should rightly be appalled at WMC's downright anti-American propaganda.

Let me also be clear in reiterating that this is a campaign against Louis Butler, and not a campaign in favor of Mike Gableman. Gableman, who has now had nearly six months to present himself and his ideas, remains essentially a cipher. We know very little about him. We have no idea whether he's even read a decision of the Wisconsin Supreme Court, let alone that he even understands what the job he's seeking entails.

In my considered opinion, the relatively little he has presented mitigates strongly against either proposition.

Have any of the anti-Butler forces even read Butler's dissent in State v. Jensen? It's a pretty impressive piece of work, by any standards, and tightly reasoned. Butler traces the history of the Confrontation Clause back to the 16th century, a reminder of the protections against the Crown that became embodied in the United States Constitution, the envy of the world. It's like reading the work of another famous son of Milwaukee, Chief Justice William H. Rehnquist of Shorewood High, the "historian" of the U.S. Supreme Court.

I read it a long time ago and as a matter of fact it was the subject of my very first post on this campaign back in December, discussing how Butler's approach exemplifies both narrow textualism and original intent, two doctrines of constitutional interpretation to which political conservatives normally proclaim undying devotion.

Now suddenly it's "needless technicalities"? How in the world can anybody take Wisconsin Manufacturers & Commerce seriously?

Please excuse my French, but just how fucking stupid do they think we are? I submit that we are far, far from stupid, and as such we need to summarily reject their disingenuous ploys, along with their obscure, bought-and-paid-for candidate, Mike Gableman.

Leave him be, where he can continue to protect the residents of Burnett County, and "preside over" their thousands of uncontested traffic tickets. Because he's clearly not ready for prime time.

Moreover, when the relatively conservative U.S. Supreme Court affirms and vindicates Justice Butler's Jensen dissent in Giles v. California later this year, it will be a proud day not only for Butler, but for all Wisconsinites. If you forget about it by then, fear not, I'll be sure to remind y'all.

As for Jessica McBride and her thoughtless enabler at the Milwaukee Journal-Sentinel, Patrick McIlheran, my criticism of them has been based in what is their demonstrably irresponsible journalism. Not only is it clear now that McBride didn't even understand the meaning of the numbers at the heart of the documents she has been working feverishly to defame Justice Butler with, but McIlheran didn't make the slightest effort to understand either.

Instead, they rushed headlong to announce their preordained conclusions, in this case, that a sitting Justice of the Wisconsin Supreme Court is a liar. Can the practice of alleged journalism get any lower? Maybe, but not by much.

One final thought. I have accused Gableman of deliberately misrepresenting the law. The reason for that is because I have no other choice. I have shown, on many occasions, with evidence, how he is misrepresenting the law. And I'm not done, either. So have others, most recently in the commentary concerning his utterly disgraceful television spot. That leaves the question of whether he is doing it deliberately or inadvertently.

If the latter, then Gableman is incompetent. That is, unworthy and unsuited to the position he seeks. By definition. But I am not calling him incompetent, for obvious reasons. Because I do know the law.

That leaves deliberate misrepresentation. And deliberate misrepresentation of the law is what Gableman and his supporters are up to, in their campaign to defame Louis Butler. It seems to me one of the reasons — perhaps the only reason — that the Gableman campaign is doing this is because he can't run on his own merits and that is because, compared to Louis Butler, he has very few.

Ultimately, whether deliberate — as opposed to inadvertent — misrepresentation of the law makes Gableman more or less unworthy or unsuitable for the Wisconsin Supreme Court is a pretty close call, I must say.

Is this really the individual that the people of Wisconsin should choose to install on the highest court in their State, thereby replacing someone who's been a judge longer than Gableman has been a lawyer? I should certainly hope not.

And while he'll probably never admit to it, I bet that — "in his heart," as they say — Esenberg agrees with much of the foregoing.

Happy Easter.

Treading on Louis Butler

Daniel Suhr, the author of the anti-Louis Butler "white paper" discussed here and here (and elsewhere) has responded to some of the criticisms over the manner in which he'd portrayed Butler's opinions in a number of Wisconsin Supreme Court cases.

While it's a response, I can't say it's much of a defense.

Of the two cases discussed at this here blog, Suhr says of the first, State v. Knapp: "Prof. Esenberg has already dispatched the criticism of my characterizations of Knapp ... quite effectively."

He has? That's news to me. Among Esenberg's remarks were the following: "IT's criticism is not ... just flatly wrong." (Thanks, I think.) "He wants to say that the federal rule was not crystal clear and that is certainly so." "IT correctly observes [that Patane] had no majority opinion."

Esenberg's only "dispatch of criticism" (if you can call it that) was to reiterate that the constitutional provision the Knapp majority ultimately based its own opinion on was not the Fifth Amendment itself, but its practically identical corollary in the Wisconsin constitution, Art. I, Sec. 8: "No person ... may be compelled in any criminal case to be a witness against himself or herself." (The Fifth Amendment reads, "No person ... shall be compelled in any criminal case to be a witness against himself." I'll save the "may vs. shall" linguistic perturbations for another time.)

However, this is no defense of Suhr's claim that Butler and his colleagues "set aside" the U.S. Supreme Court's interpretation of the Self-Incrimination Clause. As I said, Butler discussed it in considerable detail. And, as Esenberg confirms, it isn't all that clear anyway. Moreover, Suhr describes the result in Knapp as the product of Butler's "arrogance," and as a "failure to defer" to the U.S. Supreme Court. Where's the defense of that hyperbole?

As Esenberg himself points out (and even cites another SCOTUS case in support of the proposition), there is no such requirement of "deference" to SCOTUS under the circumstances. Personally, my own civil libertarian inclinations put me at a loss to explain what's so objectionable about a State court undertaking a slightly more expansive reading of the freaking Bill of Rights than the U.S. Supreme Court and then to have that reading characterized as "arrogance." That is the statement that requires a substantive defense, if you ask me.

Furthermore, from a broader ideological perspective, I'm puzzled as to how conservative fanboyz of the Federalist Society can, consistent with their other views of federalism, decry an individual State's move to insulate an interpretation of its own constitution from federal review (read: federal interference). A move, as Esenberg reminds us, that is itself grounded in SCOTUS doctrine.

As far as I'm concerned, this is simply more evidence that the conservative epithet, "judicial activism," is most often little more than code for "stuff I don't like."

Daniel Suhr's reply to his critics over the other case, Kohn, is even more illuminating. "I’m not going to go around waving it as a red flag activist case," he says. Sounds like a major concession and a retreat, to me. And yet, there it is in his "white paper," presented as a demonstration of Butler's "arrogance" and "failure to defer."

Well, guess what. You can't have it both ways.* If you're going to present Butler as a "judicial activist, arrogantly failing to defer" to other political entities, then don't use Kohn as an alleged example of same. Because it's not.

I have absolutely no objections to anyone discussing and criticizing Butler's — or anyone else's — jurisprudence; in fact I may be even more of a "dork" than Suhr himself in that sense, and I encourage such discussions. And I congratulate Suhr for taking the initiative. But it seems to me Suhr had a political objective in mind before he went sifting through Butler's opinions in search of evidence to support his preordained goals.

It's also obviously no coincidence that Suhr selected Rick Esenberg's indicators of "judicial activism" with which to measure his partisan interpretations of Butler's opinions. There happen to be other criteria defining the notion of judicial activism than Esenberg's, some of which point to conservative judges as the activists.

It's Suhr's use of inflammatory verbiage such as "arrogance," "failure," and "judicial fiat" to describe Butler's opinions that has not been adequately supported. Not even close. This is what I meant by "overly simplified, if not misleading." And it's also why I've characterized Suhr's paper as more a slanted political attack piece than considered analysis.

Once again, the import of Suhr's reaction to the Kohn criticisms is to support the view of conservatives' colloquial use of the expression "judicial activism": stuff I don't like.

But many of us knew that all along. And many of us would like to see a more convincing argument as to why Louis Butler should be removed from the bench and replaced with a virtually unknown entity from the Wisconsin hinterlands, which is what Suhr, Sykes, Esenberg, et al appear to be recommending. While I have nothing whatsoever to do with Justice Butler personally, nor his campaign, he strikes me as far more eminently qualified to continue in his position than do the credentials of his challenger to usurp it.

* Follow the link for, among other things, an example of Louis Butler's strict constructionist, originalist methodology: State v. Jensen.

Concern troll GOP candidate is concerned

Butler's narrow defeat in his run for a full term on the court came after special interest groups poured millions of dollars into a sleazy and dishonest attack campaign that played on racial stereotypes and was condemned by Democrats and Republicans, liberals and conservatives.

— The (Madison, WI) Capital Times

Dave Westlake, candidate for U.S. Senate from Watertown, announced today his concern regarding the nomination of former Wisconsin Supreme Court Justice Louis Butler to the U.S. District Bench by Sens. Feingold and Kohl.

— Westlake campaign press release

First of all, Senators don't nominate federal judges, Presidents do. An aspirant to the U.S. Senate might want to check into that, just in case that's one of the imaginary powers he's seeking as a candidate.

Second, round about 20% of the State's registered voters turned out to do so on April 1, 2008. The other 80% are probably wondering how in the world they've been "disrespected." That is, if they even care.

Third, and most importantly, there is the brute fact that State elections have absolutely nothing to do with either the federal judicial nominating process or the qualifications of the nominees.

And rightly so. It was never intended to be a popularity contest.

Bewitched, bothered, and a little insulted

The Republican candidate Dave Westlake said he was "surprised," "puzzled," and a "little insulted" by the nomination, citing Butler's narrow electoral loss to a person, Michael Gableman, who is currently under investigation by the Wisconsin Judicial Commission for lying about Butler's record as a public defender two decades ago.

Nevertheless, apparently the foregoing "concern" has become the latest petulant conservative Republican fauxtrage du jour, spearheaded by F. James Sensenbrenner (R-West Bend G&CC), a member of the House of Representatives and as such having nothing whatsoever to do with either the nomination or confirmation process.

On cue, the utterly predictable right-wing "opinion makers" have since weighed in, including a reputed local university instructor in the finer points of journalistic ethics who, in concert with an outfit called the Coalition for America's Families, was personally (and professionally, assumedly) responsible for some of the most scurrilous and defamatory attacks against Justice Butler.

"Butler," that journalist opines today, "possesses a great deal of integrity." One needn't require any additional evidence that irony died a gasping and unceremonious death a long time ago.

For some people, at least.

But even assuming that State election results are somehow at all relevant to the Article III judiciary, consider the following.

Eleventy thousand uncontested guilty pleas

The Western District of Wisconsin, the federal jurisdiction Louis Butler has been nominated to, is comprised of 44 of the State's 72 counties and in fact Butler won the aggregate vote there by a margin (53% to 47%) greater than was Gableman's statewide.

Within the Western District of Wisconsin, Louis Butler prevailed in five of the eight most populous counties, including the most populous one — Dane County — where the federal court is situated, and where he received more than 72% of the votes cast.

Additionally Butler even won Ashland County, where Gableman prosecuted the "war on crime" as district attorney and presumably where they might well have known Gableman the best.

True, Gableman strutted away with the prize in Burnett County (pop. 16,196) at least partly on the strength of the fact that not one of the 9,000 uncontested traffic tickets over which he presided there as a circuit judge was ever petitioned before any courts of appeal.*

So, yeah, according to Rep. Sensenbrenner (R-Concours Motors) et al's own reasoning, Wisconsin voters did indeed choose Louis Butler for the U.S. District Court for the Western District of Wisconsin.

Most of Gableman's 2008 electoral patrons live in the remaining 28 of 72 counties within the Eastern District, a separate federal jurisdiction, so none of them has anything to worry about anyway.

They might just as effectively complain about Obama's nomination of Abdul K. Kallon to the Northern District of Alabama.**

* Lest anybody thinks that I'm making this up or kidding around, that was an actual claim made by Michael Gableman and his delightfully urbane campaign manager, Mr. Darrin Schmitz. Seriously.

** Come to think of it, they probably will.

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.

Help prevent a tragedy — II

Continued from Part I ...

Remember Jeffrey Dahmer, who committed some of the most deplorable acts that anyone is even capable of imagining? So incapable of imagining, I suspect, that if Jeffrey Dahmer hadn't committed them, and people hadn't heard about them, then probably hardly anybody would have ever imagined them themselves? That Jeffrey Dahmer, right.

Well, even Jeffrey Dahmer had a criminal defense attorney. What entitled Dahmer to a criminal defense attorney is the United States Constitution, which Burnett County conservative Republican Mike Gableman's loudest and deepest-pocketed hooters and hollerers, Wisconsin Manufacturers & Commerce, calls a "needless technicality."

Which is funny, because WMC can get away with disgorging malodorous effluent like that because the United States Constitution allows it to, because political speech is arguably the most protected speech of all. So WMC can actually deliberately vomit and expectorate on the United States Constitution whilst claiming the very protections afforded to it by the United States Constitution. How's that for dramatic irony.

Lately, Charlie Sykes and his fellow one-trick caged orangutans are making much of the nickname that Wisconsin Supreme Court Justice Louis Butler earned when he worked for the State Public Defender 25 years ago. Sykes and Co.'s pick to replace Justice Butler, the barely coherent Mike Gableman, has for all intents and purposes made it the defining aspect of his definitively sleazy campaign.

Clyde Winter will tell you more, if you don't already know.

When many people hear that an attorney defended a child molester, they say, "Oh my god, he defended a child molester? How can anybody defend a child molester?!" But just because a lawyer defended a child molester, that doesn't mean that the lawyer defended child molestation. No, the lawyer defended the child molester's constitutional rights to a fair trial and a number of other specific protections enumerated in the United States Constitution.

Lawyers, in addition to most real humans, know what it means to "defend" the accused, or even the convicted, on appeal. They understand that even child molesters have constitutional rights. But those rights have more to do than with just defending child molesters, they also have to do with prosecuting child molesters, which is what we all want.

Furthermore, people who prosecute child molesters not only know that, but they know that the best defenders of child molesters make for the most solid and effective prosecutions of child molesters. Because a good defense lawyer makes the prosecutor work hard to prove her case. And the best prosecutors want to work hard to prove their case because they want to do good work. And the best defense lawyers make the best prosecutors do their best work.

On the other hand, the last thing prosecutors want to face is a bad defense lawyer. Because the bad lawyer forces the prosecutor to work hard too, but in those instances that hard work is not good hard work, it's annoying and frustrating hard work, and, most importantly, inefficient hard work, which makes for potentially the least effective prosecutions.

Because prosecutors have a big caseload, and they want to devote their best, hardest work to all of those cases. And they can only do their best, hardest work when a good defense lawyer forces them to. And that's what prosecutors want. Prosecutors take pride in their work, just like every other self-respecting, hard working attorney.

Nobody knows that better than Dodge County District Attorney Steven G. Bauer, who actually withdrew his support for Mike Gableman. Not only that, but DA Bauer announced in print that he wouldn't even vote for Mike Gableman. Because DA Bauer knows the score, and he knows how the system works, and he was revolted by the way that Mike Gableman and his lieutenants were misrepresenting that system, and especially distorting the role that people like DA Bauer play in that system, not just Louis Butler's former role in that system, as a public defender 25 years ago.

You may find an equally good argument against the candidacy of Mike Gableman, but I bet you you can't find a better one. And DA Bauer stated it, right out there in the public press, as forcefully and as eloquently as anyone could have. And I don't care whether DA Bauer is a conservative Republican or a card carrying member of both the ACLU and PETA. That doesn't matter one bit. Because he nailed that sucker, and what he wrote is a powerful indictment of the disgraceful campaign Mike Gableman has run, and is running, in his quest to appease his monied backers and quasi-intellectual supporters.

Think about that. When Louis Butler was a public defender 25 years ago, he earned a nickname that wasn't just complimentary and in recognition of his skills as an attorney, that nickname contained a little needling joke, because Butler was — and continues to be — held in the highest esteem by his colleagues and peers.

Because if his colleagues and peers wanted to needle Louis Butler in an uncomplimentary way, they would have needled him in private, not in public, and not even in Justice Butler's presence. Trust me on this. So really, that particular nickname, containing as it does an element of good-natured needling, is a double-plus-good compliment.

And think about that when you're considering the idiotic simian jabberings of Charlie Sykes and his pals among the Wisconsin Manufacturers & Commerce crowd.

Not only are they missing the point by an astronomically wide margin, they're parading their fundamental ignorance for all to regard. But that's their job, and it's a free country, and everyone's entitled to make a living.

But that's not the reason Sykes and the rest are playing on Butler's nickname. They're weaselly, but they're not stupid. They're playing on it because they know that a lot of people don't quite get the substance, and the meaning, of how the nickname came about in the first place. So essentially what they're doing is exploiting people who may not know any better for political goals. That's right, they're exploiting people for their own selfish purposes.

And, I can't help thinking, a lot of these people who are exploiting other people will at the same time tell you that they're religious, and devout, and righteous, that they're followers of a man who dedicated — some will tell you gave — his life for propositions entirely at odds with the idea of exploiting other people. Think about that.

Louis Butler is one of the smartest and best judges in Wisconsin. Having recently plowed through dozens of Butler's written opinions, there is no doubt about that. And he's not just one of the smartest and best judges in Wisconsin, I'd argue he's one of the smartest and best in the country. Mike Gableman is ... well, unfortunately, Mike Gableman. Gableman's entire campaign has been premised on falsehoods and personal attacks intended to tear down the personal and professional integrity of a good man. It's clear he could only fail spectacularly on that account. And it's equally clear that that's the best he could come up with.

What is certain is that Mike Gableman has definitely earned one thing. He has earned your best efforts to get to the polls tomorrow, Tuesday, April 1. And the reason why Gableman has earned those efforts is not so much so you can vote against Gableman, although that certainly is a major consideration, given the contemptible conduct of his political campaign.

The main reason that the effort should be made is to vote for Louis Butler for the Wisconsin Supreme Court, so he can return and continue the public service he has been performing for the last 15 years, which is as a judge that plays it straight down the middle, meting justice where it is warranted and required by law, and not in response to any third-party monied interests or out-of-state concerns that are shamelessly trying to outright buy our courts.

The choice could not possibly be more obvious, or simple.

Gableman wants it both ways

Last week, the advocacy group One Wisconsin Now voiced a concern over some campaign literature distributed by Michael Gableman, who is seeking to unseat Louis Butler from the Wisconsin Supreme Court next April. At issue is the prohibition against candidates for judicial office making “pledges, promises, or commitments” with respect to “cases, controversies, or issues” likely to come before the court.

The flyer, labeled, “Louis Butler: Failing Wisconsin Law Enforcement,” contains thumbnail accounts of Butler's opinions in nine split decisions of the Supreme Court wherein Butler variously joined the majority or dissented. Eight of the nine cases are 4-3 splits. Butler voted with the majority in five of those cases, and dissented in the other three. The ninth case is a 6-1 decision where Butler authored the lone dissent.

Gableman is advertised as standing in “stark contrast” to Butler, who, it's suggested, is dedicated to “expanding the rights of criminals.” The message, presumably, is that Gableman would have (or will) ruled opposite to the disposition Butler reached in the cited cases. Whether he's promising to do so in the future when faced with similar controversies is the question OWN is raising.

What interests me at the moment, however, is the juxtaposition of two of the nine cases and the objections Gableman is proffering against Butler's results in those cases from a perspective of “conservative judicial philosophy,” which is, let's face it, what Gableman is selling here.

The first, State v. Jensen (.pdf, 60 pgs.), has to do with (among other law of evidence questions) the U.S. Constitution's Confrontation Clause, which appears in the Sixth Amendment: “At all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Jensen was unable to confront the particular witness in question because he'd, er, caused her death.

In the other, State v. Knapp (.pdf, 62 pgs.), as Gableman's campaign puts it, “Butler voted to expand criminal’s [sic] rights beyond the US Constitution by voting against allowing key evidence of bloody clothing in a murder case.”

As to the latter, it's a cliché of constitutional law that the U.S. Constitution sets a floor, and not a ceiling, in terms of the enumerated rights in the Amendments. In other words, whatever limits the U.S. Supreme Court places on the Bill of Rights, States remain empowered to grant greater latitude.

In still other words, for example, if Justice Scalia convinces four of his colleagues that smoking giant cones packed with sticky, sticky bud is not a legitimate free exercise of Rastafarianism, Wisconsin courts may nonetheless deem it so, at least for the purposes of State law. This is a feature of federalism, which addresses the tension between State and federal power.

Wisconsin courts, however, embody a tradition of not hovering too far above that floor, and Gableman doesn't appreciate that Butler may wish to reconsider some of that State precedent. Because, as we all know, the doctrine of stare decisis is sacrosanct to conservatives — witness the devotion to Roe v. Wade. I digress (but not much).

Presumably, one of the defenses the Gableman campaign may raise against OWN's concerns is that the flyer, far from making any promises or commitments, is simply enunciating the candidate's judicial philosophy. And, no doubt, as the campaign continues, Gableman's supporters, at least, can be expected to let loose the familiar code phrases, “strict constructionist” and “original intent,” guaranteed to warm the conservative heart and invoke pleasant apparitions of their favorite jurisprudes, Scalia and Thomas.

But in his Jensen dissent, Butler deploys both strict constructionism, in his emphasis on the Confrontation Clause's “all criminal prosecutions” language, and original intent, in arguing that the U.S. Supreme Court's interpretation of the Sixth Amendment is itself frozen in 1791, which is what informs Butler's conclusion.

However, apparently, it's merely the result Gableman doesn't like. Surely he can't be objecting to the employment of strict constructionism and original intent, can he? If so, there's a Butler campaign slogan for you right there: "Michael Gableman, a living, breathing judge who sees the Constitution in exactly those terms."

(Better a Charlie Schutze campaign slogan, come to think of it.)

Now, it may be claimed that Butler is the one who wants it both ways, on the one hand arguing for a modern expansion of the Fifth Amendment (as in Knapp) but also for restricting the Sixth to its original understanding (as in Jensen).

But there's nothing unusual about a judge employing different means of interpretation when facing resolutions based in different sets of circumstances and different historical strains of law. They all do it. And besides, it isn't Butler who's criticizing Gableman for his jurisprudence; it's the other way around. For the moment, at least.

The moral of the story is that the next time you hear a conservative yammering about strict constructionism or original intent and her unwavering devotion to same, don't believe a word of it.

Butler and Prosser, judicial traditionalists

A few items related to the ongoing election campaign between incumbent Wisconsin Supreme Court Justice Louis Butler and his challenger, Burnett County Judge and sometime Republican gubernatorial contributor Michael Gableman.

First off, a very thoughtful and well written piece in the Badger Herald by Suchita Shah, a UW student of neurobiology (and the courts, it would appear), is worth checking out here.

Next we have the campaign watchdog committee, the WJCIC, issuing a couple of warnings, one to Gableman, and the other to some anti-Gablemans (nothing for Butler, however).

The WJCIC goes after a third-party outfit called the Greater Wisconsin Committee for a 30-second spot it produced called "Meet Mike Gableman." There's a QuickTime version at this link (it's actually pretty funny, and Wisconsinites sure do love their bobblehead dolls).

The spot presents a number of documented facts, and suggests there may have been some partisan political shenanigans leading to Gableman's Burnett County judgeship. Cory Liebmann has some more documentation on "Gableman's Suspicious Appointment" here and here.

But the WJCIC says the ad "implies, without explicitly stating, that Judge Gableman somehow committed an ethical lapse in the events leading to his appointment by [Republican] Governor Scott McCallum as a circuit court judge in Burnett County," and calls for the GWC to "immediately remove this ad from the airwaves."

That ain't going to happen.

The other WJCIC tongue-lashing concerns the Gableman campaign's characterization of State v. Brown, which is discussed below. (I don't know why the WJCIC is focused on the Margaret Farrow letter; the identical claims appear in Gableman's own official literature).

Butler the traditionalist

A more general concern voiced by the WJCIC is primarily of interest to law nerds, although it's probably the most salient point in the press release. According to Gableman, Justice Butler cast "the deciding vote" in State v. Brown, the implication being that if not for Butler, Richard A. Brown's petition for supervised release would have been ultimately denied.

But that isn't the way it works. It isn't as if six judges are deadlocked 3-3 on a question and Justice Butler happens to walk by and one of the six yells, "Hey Louis, what do you think? We need a tie breaker."

More importantly, as the WJCIC suggests, according to the deciding vote theory, Justice David Prosser is equally responsible for allowing Brown's petition to move forward and Prosser is, according to Wisconsin Manufacturers & Commerce, not only the most "traditionalist" member of the court, he's also its least "activist."

So it's practically a self-defeating claim for the Gableman campaign to criticize Butler's vote in Brown when Prosser voted exactly the same way. Not only that but Justice Patrick Crooks, who WMC places on the "activist" side of the ledger, dissented in Brown. But obviously the Gableman campaign doesn't want you to know that, otherwise they wouldn't be able to shout, "zOMG sex offender on the loose!!!1"

Besides, if Prosser the traditionalist hero voted to reverse the court of appeals, doesn't that mean Butler got this one right? It also means that Michael "Stark Contrast" Gableman would eschew the traditionalist position in favor of the activist. And that can't be good.

No wonder he refused to engage further questioning on Monday.

One thing's for sure, Butler's recently hired communications director, Erin Celello, is no shrinking violet, and the AP's Scott Bauer reports that Celello sets up the Brown trilemma as follows:

Celello said Gableman's comments show that he either hasn't read the court's decision, doesn't understand it "or is purposely lying about it as a desperate attempt to get any traction in this race."

Lastly, a stellar example of responsible journalism from the Inter-County Leader, which published an unsigned piece describing the GWC effort as "smear television ads launched by a shadowy special interest group" and quoting Gableman lieutenant Darrin Schmitz as saying, "It looks like Louis Butler sent his liberal, special interest friends to do his dirty work for him."

The item goes on to again state that the GWC is "a shadowy group, which launches smear campaigns that mislead voters and do not pass the truth test." At the very end we find the source of the article: "submitted." Submitted by Darrin Schmitz, I think is a pretty safe bet to place. It's also likely a shoe-in for the Columbia Journalism Review's "Darts & Laurels" section, in that it's practically a bullseye.

It is, however, a clever "pot v. kettle" game Schmitz is playing.

[Please visit the iT Butler/Gableman archive.]

Fruit of the poisoned mind

We've already seen how the young GOP operative Daniel Suhr, in an effort to paint Louis Butler as a detriment to the "safety, prosperity, and health of the citizens of many states," completely misrepresented two criminal appeals cases, Cleaver and Farris.

It just so turns out that that mispresentation extends to a "GOP Triumvirate" of cases, the third being a Vermont decision from last year called State v. Peterson.

Declares Suhr: "In State v. Peterson, the Vermont Supreme Court cited Knapp and two other state supreme court decisions when holding that the Vermont Constitution provided broader pre-Miranda evidence gathering protection than the U.S. Constitution."

Once again, the Vermont court reached its conclusion independently of Knapp. It did not rely on Knapp in any sense whatsoever. Like the Ohio case, Farris, the Peterson court simply "notes" that it happens to have reached a disposition similar to Knapp. Knapp isn't presented as an authority for the Peterson result at all.

While Suhr's language is a bit more coy this time around — 'Peterson cited Knapp when holding ...' — it most certainly doesn't belong in a list of cases devoted to the proposition that the baleful presence of Louis Butler is infecting the jurisprudence of courts throughout the land and who, by extension, must be deposed.

Peterson turns on an analysis of United States v. Patane, the U.S. Supreme Court decision that also figured prominently in Knapp. But Patane is assessed in light of the Vermont Supreme Court's own prior holdings, certainly not those of the Wisconsin Supreme Court, and most definitely not those of Louis Butler.

A proper — and honest — treatment of Peterson would have been, 'Peterson cited Knapp after holding ....' But of course this wouldn't have supported Suhr's personal opinion that Louis Butler is a menace to civilization as we know it. Unfortunately, none of these three cases, Cleaver, Farris, or Peterson, even support Suhr's personal opinion. This is unvarnished political attack against Justice Butler, and what doesn't appear to figure prominently in it is honesty.

Well, that's enough of that. I see no point in checking any more of Daniel Suhr's disingenuous politicking. Three strikes. In a row.

Yer out.

Oh, by the way, I notice that Counsellor Mike Plaisted, in the course of his fine work here, links to a supposedly politically influential local conservative blogger, who opines:

Daniel Suhr of GOP3 has done a great service by analyzing all of Justice Butler’s opinions to evaluate his judicial philosophy.

Uh huh. It's a service alright.

The "Butler list"

Here is the deal. In a press release dated 3/06/08, WIsconsin Supreme Court Justice Louis Butler's campaign communications director Erin Celello wrote:

Justice Butler has voted to uphold criminal convictions in 97 percent of cases brought before the court. Even if you only select those criminal cases in which the Court has issued a written opinion, Justice Butler has ruled in favor of a criminal appeal only about one-third of the time, a rate not much different than any other member of the court.

Emphases added. Notice: "upholding criminal convictions" vs. "ruling in favor of a criminal appeal." Those are obviously quite different issues. Everybody knows that, right?

Recall, Celello's statement was in rebuttal to the Coalition for America's Families claim that Butler "has sided with criminals nearly 60% of the time," whatever that means. ("Right-wing guy" investigative reporting into that figure has been hard to come by.)

The "Butler list" of 70 cases is all about convictions. That's why it contains numbers in parentheses, thus: (3:0). In such a case, there were three separate convictions on three separate charges. But "ruling in favor of a criminal appeal" does not necessarily mean that the conviction was reversed. In several of the 70 cases, the defendant won an appeal, but the conviction remained in place.

Now why somebody would expect the Butler campaign to score a conviction as reversed where there was no conviction reversed is anyone's guess. Maybe some "right-wing guy" has some insight into that as well. Then again, it's easier to just call a sitting justice of the Wisconsin Supreme Court a liar, I suppose. After all, that's what any self-respecting journalist would do.

So convictions are what this list is all about. If a defendant won an appeal, and on remand the circuit court reversed the conviction, that reversal cannot be laid at the feet of Justice Butler. For one thing, the Supreme Court is often addressing questions of constitutional infirmity that are only tangentially related to the conviction itself. And, for another thing, in many of these cases Butler sides with the most conservative members of the court.

Therefore, in those numerous instances, if Wisconsin Manufacturers & Commerce wants another David Prosser, they've already got one in Louis Butler.

As several other observers have pointed out, these "percentages" are a bit silly, because there are so many other factors involved. But the bottom line here is that the Butler campaign was responding — however tactically wise or not — with percentages of its own.

As the list stands, the percentage of convictions where Butler (whatever other members of the court he aligned himself with) did something other than reverse that conviction, stands at 70.89%. In every single specific case but one that Jessica McBride objects to on these grounds, the Supreme Court did not reverse a conviction.

Pursuant to that one case, State v. Raye, McBride does appear to have located a typo. Woooo. So if we move that conviction to the reversed column, the percentage changes to 69.23%.

As for her other objections, I'm not going to address any more of them at this point. If she wants to quibble over what some of the notations beside the docket numbers mean, then, fine. Or if she wants to complain about the accuracy of the wording on either side of the backslash in the header, then, fine.

But elsewhere she vacillates between demanding only cases with the -CR suffix and insisting that cases without the -CR suffix be added to the list, and I simply have no interest in untangling such incoherence.

69.23% is what the list shows. Of all the cases on that list, once the Supreme Court had finished its decision making process, 69.23% of the convictions remained intact. Then they went to other courts.

That's what the list means.

Gableman then and now

Then:

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 rape another child.

Now:

Justice Gableman denies the Advertisement states "that Louis Butler had any responsibility for or involvement in Mitchell's release from prison in 1992 or that any action by or work of Louis Butler had anything to do with Mitchell's commission of the subsequent criminal molestation referred to in the Advertisement."

At the very least, the Advertisement most certainly does "state" that Louis Butler worked to put Reuben Lee Mitchell on the street. And the clear suggestion is that Butler's work did put Mitchell "on the street," which is where he committed the subsequent offense.

Gableman Answer* (.pdf; 13 pgs.).

* Short version: Justice Gableman denies violating the Wisconsin Supreme Court Rule and even if he did, the Rule itself is an unconstitutional abridgment of his freedom of speech.

CFAF "deemed" criminally inept: Part 4

Let's get into the cases now. This is how you do it, you read the cases, and have a look at what Wisconsin Supreme Court Justice Louis Butler actually did in each one. Here we go, with the first ten. Enjoy, and please pay close attention, local reporters and editorial board members. And then go and do your jobs, and report the truth.

01. State v. Harris 2006AP882-CR

CFAF's underhanded agenda is clearly evident from the very first case on its list (which isn't CFAF's list to begin with, it's a list produced by the Butler campaign. Think about that).

CFAF claims Harris shouldn't be included in the "sided with criminals" calculation because it "came up" (I'll assume that means decided) "after CFAF Ads began." Tough. In Harris, Justice Butler voted with a unanimous court to affirm a conviction of possession of cocaine with intent to deliver.

Why shouldn't Justice Butler get to count a case where he voted to affirm a criminal conviction? Is Butler supposed to be held to CFAF's schedule of character assassination, lies, and generally comic bumbling? I don't think so. How can CFAF and its little helpers actually suggest such a thing with a straight face? Makes you wonder, doesn't it.

02. State v. Hambly 2005AP3087-CR
03. State v. Ford 2006AP806-CR

Butler voted to affirm convictions in both cases. Ford involved three convictions. Undisputed by CFAF.

04. State v. Grady 2005AP2424-CR

Defendant Grady filed a motion to reconsider the court's earlier ruling involving two convictions. A unanimous court, led by Justice Wilcox, the court's most conservative member, voted to deny the defendant's motion. Not even CFAF can dispute this one.

Remember this case, for when you get to number 08. below. I hope you point and laugh at CFAF and all of its little helpers, because I sure did.

05. State v. Johnson 2005AP1492-CR

Another appeal from a "criminal's" sentencing. Johnson had been convicted of four counts: two batteries, one of disorderly conduct, and one of theft. Justice Prosser, another of the court's most conservative members, for a unanimous court (including Justice Butler, of course), wrote to deny the defendant any relief. Undisputed by CFAF.

06. State v. Jenkins 2005AP302-CR

"[Jenkins] had a lengthy criminal history, including two prior felony convictions, parole revocations, and incidents of violence. He was charged with selling heroin." He tried to withdraw a guilty plea. He was denied in the circuit court but the court of appeals reversed. The Supreme Court reversed the court of appeals, and the denial of Jenkins's motion was affirmed. Justice Butler agreed with that result, but wrote separately to make clear the distinction between plea withdrawals before and after sentencing. He was concerned that the majority opinion, which he did not join, needlessly muddied that distinction.

A colorable argument might be made that Butler's opinion potentially favors the rights of criminal defendants (heaven forbid) as opposed to the majority's conflating the separate situations of plea withdrawals, but CFAF isn't that bright, and doesn't dispute the Butler campaign's designation for this case. Maybe they should give me a call next time they need advice. Although I'd have second thoughts about taking their money, because I swore an oath of ethics.

As a matter of fact, I swore it in the presence of Justice David Prosser. Let me say something about Justice Prosser. He is an exceedingly friendly, kind, and generous man, and took his own time to ask each of us something about ourselves on that day.

Justice Prosser is regarded as one of the "conservative" members of the court. Sometimes, I don't agree with Justice Prosser's reasoning. But I'm glad he writes for the court, and if I had a disagreement with Justice Prosser's reasoning, I would explain why. I wouldn't just attack it baselessly, or misleadingly, as CFAF and even Mike Gableman has done to Justice Butler.

Justice Prosser, for example, got it really wrong in State v. Stenklyft. But that's cool. I'll let him stay on the court and see if he improves!

07. State v. Bannister 2005AP767-CR

Bannister is a case where Justice Butler reasoned that the defendant's conviction should be reversed, that's true. But Butler would have ordered a new trial, not let Bannister walk away scot free. And there is a purpose to why the Wisconsin Supreme Court has seven members. It's because there are different approaches to the law, in this case, the law of evidence, and the procedures that State prosecutors need to adhere to in order to protect every American's constitutional rights.

Butler disagreed that some evidence should have been admitted at trial, and he explains very clearly why. And if you read his dissenting opinion, you'll see that Butler gave the majority every benefit of the doubt as to whether or not the presentation of that evidence prejudiced the jury, which is the ultimate test on questions of admissibility of evidence.

Finally, dissenting opinions are practically a public service, because anybody can go and read these opinions. Even reporters, and editorial board members. Dissenting opinions give you a chance to compare their reasoning with the reasoning of the majority. And sometimes you might even agree with the dissenting opinion.

What's that? Did a conservative Republican mention the dissents to, for example, Roe v. Wade? Oooh ... good catch!

Nevertheless, Justice Butler would have ruled for a new trial — not the release of a "criminal" — and we can count this case "against" Justice Butler. Butler agrees, and CFAF doesn't dispute this case.

For obvious reasons. By the way, you'll notice that CFAF never disputes the interpretation of a case that Butler counts "against" himself. Never. Over the course of nearly 70 cases, given the complexities and subtleties inherent in these opinions, you'd think such a situation would arise at least once, wouldn't you?

Haha. You're funny.

08. State v. Grady 2005AP2424-CR

More comedy here. CFAF didn't count this case, because they saw "State v. Grady" two times on Butler's list of 62 cases. So CFAF went, 'Buh?' "This the same case as #4" [sic]. But CFAF was very hasty in its desperation to try and support its phony misportrayal of Justice Butler's record. Because Grady's sentencing for two convictions went before the court two times. In the first Grady, Grady I, Justice Butler voted with a unanimous court to deny Grady another kick at the can. Then, Grady tried again, and in Grady II, a few months later, Butler again voted with a unanimous court to deny Grady a kick at Grady I (Justice Ziegler did not participate).

So Butler ruled against this "criminal" two times. Except CFAF doesn't want Butler to count the second ruling. How come, you might ask. Because they'll do anything they can to further their goal of character assassination, that's how come, including even allowing themselves to look really, really dumb and embarrassed and foolish.

You might say, well, okay. We'll let Justice Butler count Grady I, but not Grady II, because all Grady II did was affirm Grady I, which left Grady's two convictions fully intact. You might say that.

But here's the best part. CFAF counted Grady II, but not Grady I! Them smart, yes? Here's some helpful information for CFAF and their little friends, that might come in handy the next time they engage in a campaign of lies to attack the character of a good man, and a fine jurist: II+I=IV.

09. State v. House 2005AP002202-CR

Justice Butler voted to affirm House's conviction, together with Justices Prosser, Roggensack, and Wilcox, the three most conservative members of the court. Chief Justice Abrahamson dissented. Even the CFAF brain trust got this one right, and doesn't dispute Butler's list. One thing CFAF won't tell you, of course, is that Butler and Wilcox were in 100% agreement for affirming the "criminal's" conviction. Because Justice Wilcox was the "conservative" judge, and CFAF wants you to think that Butler is the "liberal" judge.

And, Burnett County conservative Republican Mike Gableman wants you to think he is just like Justice Wilcox, and not like Justice Butler. But in this case, Justice Butler was exactly the same as Justice Wilcox! So what the hell is Gableman talking about?

Because the truth is, in the cases that the court accepted for review, Butler voted against the defendant about 75% of the time. CFAF really, really, really doesn't want you to know this. They would rather lie. Because lying is a family value, don't you know? At least, in the conservative Republican version of family values, I guess.

10. State v. Mayo 2004AP1592-CR

I already talked about State v. Mayo right here. CFAF really and truly f*cked up royally on this case. Please go read my post. You'll be, as I am, pretty appalled at CFAF's negligence. Not to mention the negligence — or worse — committed by everybody that has been relying on CFAF's "analysis," or worse still, defending it.

I probably don't need to go on, but I will. Because I can't wait to tell you about Stenklyft. Not only does CFAF, Jessica McBride, and any other supporters and defenders of CFAF's incompetent drivel misrepresent the opinions (there are three), but so does Mike Gableman himself, in his own campaign literature.

And the misrepresentations of Stenklyft really piss me off. Because Stenklyft is another case that contains an issue that goes directly to the heart of the American system of constitutional democracy. And when people deliberately misrepresent that, it irritates me.

Okay, I say it irritates me but in some instances I'm actually laughing my ass off at the sheer buffoonery of it all. And that's another reason why the Gableman campaign's portayal of Stenklyft is entertaining.

And remember when Mike Gableman said he wasn't aware of any study that contradicted CFAF's bogus claims? Well, guess what. Here it comes. He can keep saying he isn't aware of it, but that doesn't mean there isn't one.

ttfn

To part 5 ...

The ghost of Gableman to come

Burnett County Judge Michael Gableman is having some trouble with grammatical tenses: past, present, future ... that sort of thing. And he's insisting on maintaining his own idiosyncratic understandings despite being confronted with the facts.

Debating in Madison yesterday, incumbent Justice Louis Butler suggested that Gableman should correct a statement made by former Lt. Governor Margaret Farrow in a hyperventilating missive (.pdf; 4 pgs.) that began circulating earlier this month.

The statement has to do with the Wisconsin Supreme Court's decision in State v. Brown (.pdf; 52 pgs.), which reversed both circuit court and appeals court denials of a petition for supervised release filed by Richard A. Brown, who was convicted of second degree sexual assault nearly 15 years ago.

As AP reporter Scott Bauer puts it,

The offender, Richard A. Brown, was never released from prison. Butler called the letter "simply false," saying all the court's ruling did was order a release plan for Brown.

Gableman refused Butler's call to retract the letter, saying the court's ruling would have resulted in Brown's release had it not been for another factor that kept him in prison. He did not say what that was. After the debate he declined to comment in detail about the case, saying as a judge he didn't want to prejudge any case that may come before him.

How convenient, on both counts. First of all, it wouldn't have been terribly effective for Gableman to have repudiated Farrow's letter anyway, because the statement in question is lifted practically verbatim from Gableman's own campaign literature.

It comes from a list of brief (as in, one sentence) case synopses "Paid for by Gableman for Supreme Court," and distributed last year by three sheriffs and three district attorneys. For comparison:

Louis Butler provided the deciding vote to overturn a sexual predator decision by a circuit court, resulting in the release of the predator into Milwaukee County. — Farrow

Louis Butler provided the deciding vote to overturn a sexual predator finding by the circuit court resulting in the release of the defendant into Milwaukee County. — Gableman

(One sentence case synopses are practically by definition misleading, incidentally. Do not trust them, especially when they issue from a political campaign.)

Gableman is wrong, and Butler is correct, in that the Supreme Court's order was not to "release" Brown into Milwaukee County, but rather to instruct the lower court "to notify the Department of Health and Family Services that it should submit to the circuit court, pursuant to Wis. Stat. § 980.08(5), a plan for Brown's supervised release."

Big difference, and one in which the circuit court (not to mention the DOC) retains discretion and control over the supervised release plan.

Butler should know, since he joined the majority opinion, and also wrote separately to discuss a technical point of the law of evidence. And Gableman should know better, because he's advertising himself as qualified to serve on the State's highest court.

At the moment, Richard A. Brown is nowhere near Milwaukee County. He's in a supervised living facility in Mauston, 150 miles away. And it's unlikely that Brown will be wandering around Milwaukee County unsupervised anytime soon.

There's little question that Richard A. Brown is an eminently disturbing character, with an equally disturbing past. He's also dangerous; at least, that has been the determination of the State, and he's a registered sex offender for life.

But, like it or not, the Wisconsin legislature has put in place the means by which people like Brown (and worse) can apply for various degrees of supervised release from prison. Furthermore, to say that the circuit court and appeals court decisions that denied Brown's petition were close calls is an understatement.

So apparently this is Gableman's latest campaign strategy: to mischaracterize not only the law but the facts of Supreme Court opinions and then, when asked to explain, retreat under the Cone of Silence that supposedly prevents him from expounding further on the questions addressed in the case.

Funny, because Gableman has been announcing for a robust, constraint-free discussion of issues in his campaign to unseat Justice Butler. I can't say I'm real impressed with this tactic, and nobody else should be, either.

Please reverse me, let me go

With apologies to Engelbert Humperdinck.*

Yesterday morning I mentioned Justice Louis Butler's dissent in State v. Jensen, the Wisconsin Supreme Court decision that allowed into evidence at Mark Jensen's trial certain out-of-court statements of the victim (Jensen was convicted in Elkhorn, WI last week for the first-degree intentional homicide of his wife).

An appeal of a nearly identical case from California, People v. Giles, was accepted by the U.S. Supreme Court in January, and retitled Giles v. California. Factually, Giles is different from Jensen, but the question of constitutional doctrine the Court will be engaging is exactly that which Justice Butler argued in his dissent.

First of all, commenter Atty. Bill Tyroler of the State Public Defender's Appellate Division (one of the most important and admirable positions in the country) is absolutely correct in pointing out that Jensen's attorney, Stephen Glynn, wasn't predicting a victory for Giles. Mr. Glynn was saying that if Giles prevails, then Mark Jensen would get a new trial, because a Giles victory would affirm Justice Butler's dissent, which argued that the aforementioned out-of-court statements were inadmissible.

In any event, the question the U.S. Supreme Court will be addressing (oral argument is set for Tuesday, April 22) arises from the Sixth Amendment to the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]

Mark Jensen was unable to enjoy this right for the obvious reason that he caused the death of the particular witness.

Furthermore, out-of-court statements generally are hearsay and hearsay generally is not allowed as evidence where it is offered to prove certain matters. There are, however, a number of exceptions to the hearsay rule, as well as some out-of-court statements that are not hearsay (hearsay exemptions).

According to Sixth Amendment doctrine (that is, interpretations developed by the caselaw), there exists a "forfeiture by wrongdoing" rule, according to which the accused effectively waives his right to confront witnesses against him where he caused the witness to be unavailable to testify in court.

The question before SCOTUS is whether, in order to overcome the Sixth Amendment, the government needs only to prove that the accused caused the unavailability of the witness or does it need to prove, in addition to mere causation, that he caused it for the purpose of preventing the witness from testifying in court.

Butler's position in Jensen was that the government needs to prove both. John Marshall Law School's Colin Miller of the EvidenceProf Blog describes the majority's — that is, not Butler's — as "the liberal view."

And, as I noted previously, Butler's reasoning employed what might be fairly characterized as a "strict construction" of the Sixth Amendment, in particular the phrase "all criminal prosecutions." One of the reasons I say this is because I'm reminded of a dissenting opinion by Justice Clarence Thomas in a 2005 decision called Small v. United States.

Small was charged under a federal statute that prohibits firearm ownership to those "convicted in any court" of a felony. In Small's case, the prior felony conviction occurred in Japan. The majority concluded that the Japanese conviction didn't count, because, for one thing, U.S. courts couldn't be certain that foreign due process of law comported with American legal requirements.

Thomas (along with Justice Scalia) didn't even go there, insisting that 'any means any,' even, presumably, courts in Iran or North Korea. By the same token, Justice Butler's Jensen dissent treats "all criminal prosecutions" as does Thomas treat "any court":

The operative word in each of these [federal and State] constitutional provisions is the word "all." Neither provision creates a homicide exception to the constitutional guarantee of confrontation. Yet, the majority's misconception of the doctrine of forfeiture by wrongdoing does precisely that, defeating the confrontation guarantee contained within the state and federal constitutions.

The consonance between Butler's and Thomas's dissents is uncanny! Yet Butler is denounced as an "activist" by political conservatives while Thomas is held out as the very model of "traditionalism."

A number of observations I've seen embody the expectation that the U.S. Supreme Court will rule in favor of the California defendant/appellant, Dwayne Giles. That result would vindicate Justice Butler's dissenting view in Jensen, and is the reason why Mark Jensen may get a new trial, since the evidence in question was "extremely important," according to at least one juror.

The other significant aspect to all this, of course, is that Burnett County Judge Michael Gableman has used Butler's Jensen dissent in support of his "stark contrast" campaign message, the "stark contrast" in this instance being, in effect, 'My opponent stands a good chance of being affirmed by the U.S. Supreme Court, whereas my own position openly invites reversal.'

That position, incidentally, puts Gableman into alignment with Chief Justice Shirley Abrahamson, who Wisconsin Manufacturers & Commerce "rates" as even more of an "activist" than Louis Butler. (Cue Drama Badger, or whatever that mammal is.)

While Giles won't be decided until well after Butler retains his seat on the Wisconsin Supreme Court, perhaps Gableman might consider removing Jensen from his parade of horribles in the meantime.

* Release Me — Engelbert (Moab-y [Utah] Remix).

[Please visit the iT Engelbert Humperdinck archive.]

Help prevent a tragedy — I

I'm doing my part. And I'm not talking about this here blog, which has been pretty much devoted since December to debunking as many misrepresentations and falsehoods emanating from Burnett County conservative Republican Mike Gableman's election campaign and its supporters and professional apologists as was humanly possible.

Of course, some people are beyond all hope. An otherwise respectable local conservative blogger announced this morning he was voting for Gableman based on Gableman's "honesty." File that one under 'lost cause.'

Another said, 'I don't care if Louis Butler is a cross between Antonin Scalia and Solomon and Mike Gableman rode the short bus to Hamline Law School, I hate Jim Doyle so I'm voting Republican.' Parse that.

But I caught one yesterday, and in person. I have been teaching piano in Milwaukee two days a week for more than four years. A gentleman named James was my very first student here, and he's with me to this day. He's both highly motivated and dedicated, the perfect student. I can't recall him missing more than two or three appointments. I don't know all that much about James but I know he's a great guy, and he's becoming a pretty good pianist.

James, who I'm guessing is in his early 50s or so, had never played an instrument in his life before we met. He's long since taken to selecting his own music to read and learn on his own, often hymns that he plays at his church. (I had to encourage the hell out of him to do that, because he was nervous about performing in public, but I understand he's been a great success there.)

Lately we've been working at learning how to play out of what we call "fake books," which notate only the one-line melody of each tune, accompanied by chord symbols. They're a very basic representation of each song, and you need some theoretical and analytical skillz to realize each tune's performance. To my unending delight, James has taken a keen interest in music theory and jazz composition, two topics about which I could ramble on forever.

Whenever he starts learning a new piece from his fake book, he reads through the chord changes and marks each one with the Roman numerals musicians use to analyze the harmony. It's outstanding that he does this. James is one of my favorite piano students of all time, and I'm extremely, extremely proud of his achievements.

At the end of our weekly session yesterday, I told James to make sure he votes on Tuesday. He turned to me and said, "Oh, don't worry, I can't wait to vote against Louis Butler."

"Wait a minute, James," I said, "What?" And I am not exaggerating much when I say that James told me that Justice Butler was dedicated to shutting down all business activity in the State of Wisconsin and releasing every child molester onto the streets.

"James," I asked, knowing full well the answer, "Where in the world are you hearing this stuff?" "Charlie Sykes," came the depressingly predictable reply. "Hang on James," I said, and went to see my next waiting student to refund his money, because I was going to be a few minutes. Fortunately that young fellow travels with James, a really cool kid who I think some friends at James's church have adopted.

"Okay, James," I said, returning to my studio and closing the soundproof door, because I anticipated doing some yelling. "Tell me exactly what you've heard Charlie Sykes saying about Louis Butler. Everything."

I must say James had learned quite a bit from Charlie Sykes, and described some of the details of several of the cases Justice Butler has participated in fairly accurately. James was also disturbed by Sykes's incessant and idiotic harping at Justice Butler's ancient and complimentary nickname, earned more than two decades ago in a completely different context and capacity.

For the next 25 minutes I carefully debunked each and every one of Charlie Sykes's falsehoods. I talked about State v. Knapp. I talked about Butler's lone dissent in State v. Jensen and the likelihood of Butler's complete vindication by the most conservative members of the U.S. Supreme Court later this year.

I talked about products liability, and how Americans at least deserve to have access to the courts to try and make their cases when manufacturers market consumer goods that cause people to be injured or killed. Those same businesses shouldn't be allowed to buy the courts, and voters like James can easily stop them.

Most importantly, however, I talked about the genius of the United States Constitution and the Bill of Rights and specifically the Fourth, Fifth, and Sixth Amendments and how they afford protections to all Americans and not just to those under investigation and prosecution for crimes by the government.

I told him about Mike Gableman's campaign and, using a number of very specific examples, described to James that Gableman has been waging the most blatantly partisan and underhanded and despicable election campaign quite possibly in the history of Wisconsin.

It must have been a decent speech, because James left my studio promising to vote for Justice Butler and, almost equally importantly, against Mike Gableman. James trusts me, and he knows that I would never steer him wrong about the American system of constitutional democracy, and the role of the courts, and yes, even the role of public defenders in the adversarial legal scheme.

Because James knows I would never steer him wrong about music theory and harmony, so I certainly wouldn't bullshit him when it comes to the foundations of this ingenious and successful experiment in democracy and freedom.

Unlike Charlie Sykes, who would, and will, and does.

So, many thanks James, my man, and I'll see you next Sunday. Far from regretting the vote you cast tomorrow, you can be as justly proud of it as your touching version of Richard Rodgers' My Funny Valentine that you learned to play for your daughter when she was visiting from out of town that one time. Trust me on this, brother.

And a word for Charlie Sykes. I understand you're given to bellyaching about the state of education in this country. If you really do care for that, then you'd best stop poisoning the minds of my own most valued and decent students with your insidious, vicious lies.

Continued ...