Loophole Gableman, Parte the Seconde

While we wait for the Wisconsin Judicial Commission to schedule Michael Gableman's hearing before a three-judge panel in Waukesha County, we can have another look at Gableman's legal defense against his alleged violation of Wis. Stat. § 757.81(4)(a), willful judicial misconduct.

The following is from Gableman's Responsive Statement of Facts in Case No. 2008AP2458-J,* filed with the Supreme Court on Apr. 1, in rebuttal to the Commission's Statement of Facts, of Feb. 27:

9. The underlying facts giving rise to the Commission's Complaint are these:

D. Although urged by his campaign to release the responsive ad as soon as possible, Judge Gableman insisted first upon reviewing the entire video presentation because he wanted to make sure he understood what was going on, not just what the words in the ad were.

E. After receiving the text of the ad, and the video of the ad, Judge Gableman was not pleased with the "tone" of the ad.

F. Accordingly, Judge Gableman delayed the release of the ad for a week while trying to work out possible other endings to the ad. Ultimately, however, he did not make any changes.

Gableman's response:

Justice Gableman further disputes Paragraphs 9(D), (E), and (F) because they are misleading. Those Paragraphs are misleading because they do not set forth the fact that during the time leading up to the publication of the Ad, Justice Gableman sought to and did verify the accuracy of the Ad. See supra paragraph 13(a)-(b).

This is Gableman's paragraph 13(a)-(b):

13. Justice Gableman made every reasonable effort to ensure that the Ad was accurate by:

a. Obtaining assurances from campaign staff who had drafted the text of the Ad that an appropriate investigation into accuracy of the facts set forth in the Ad had been conducted.

b. Being familiar with the Mitchell cases in general, with their facts and holdings, and the arguments advanced by Butler, who represented Mitchell.

A couple of things first: As demonstrated earlier, Gableman was pretty clearly not as "familiar" with "the arguments advanced by Butler" in the Mitchell cases as he claims, otherwise he wouldn't have utilized the expression "legal loopholes," as he continues to do in his latest court filing.

(Gableman also claims that Butler "used" the law to "harm a rape victim." Yes, he's actually saying that now. Apparently this astonishing tactic failed to occur to him during the election.)

Second, it's irresponsible for a judge to rely on "campaign staff" assurances where the judge is the one governed by Supreme Court rules concerning the ethical conduct of elections. That this claim appears as an element of Gableman's "reasonable effort" seems to be only for the purpose of attempting to apportion some of the blame for Gableman's own actions onto the heads of his subordinates.

Elsewhere (¶ 15), Gableman claims he solicited "friends to view the Ad to address his concerns about the tone of the Ad." Whether Gableman's "friends" constitute an appropriate focus group under the circumstances is a separate subject for discussion, I suppose.

Nevertheless, Gableman has yet to document their reaction, so in the meantime, what these viewing parties have to do with Gableman's legal defense is anybody's guess. Because his friends said "Go for it"?

That's certainly no absolution for responsibility either.

Now, what Gableman is saying in his response to the Commission's 9(D), (E), and (F) is that each subparagraph describes one or more points in time, but their cumulative effect is "misleading" because a description of certain intervening events is missing.

This argument should sound ironically familiar because it's the same species of argument the Commission is advancing against Gableman and the collection of individual statements he made in his teevee advertisement:

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.

That is, Michael Gableman wishes us to buy into his deployment of the argument, but not the Commission's, and furthermore in spite of the fact that Gableman's allegedly disparate collection of propositions was embedded in video production complete with, inter alia, side-by-side mugshots of R.L. Mitchell and Justice Butler, minor-tonality musical accompaniment, and bathetic narration.

As a matter of fact this is the basic thrust of Gableman's defense: That each of those four sentences are in and of themselves "true" — even though the third one, at least, is false by definition — and therefore any inferences drawn by a viewer connecting the statements are irrelevant for the purposes of interpreting the ethics provision Gableman is accused of violating.

It's exceedingly difficult to imagine anyone not making the connection so clearly intended by Gableman's teevee ad, that Butler's lawyering led directly to Mitchell's subsequent offense by "putting him on the street."

On that point, it's also worth mentioning — again — that Butler's appeal was based upon Mitchell's trial lawyer's objections to certain evidentiary (over)rulings made by the judge in the circuit court. Not to take anything away from Louis Butler, but he didn't exactly dream up the grounds for appeal out of whole cloth all by himself.

If Gableman's defense seems a little weak, that's because it is. The only thing it's missing is a deed to the Okefenokee Swamp.

I'm going to make a prediction, as it seems to me blindingly obvious that Gableman won't be able to sustain this ill-advised defense beyond his impending hearing. Gableman will end up copping to the "aspirational" (as opposed to its immediately preceding "mandatory") provision of Supreme Court Rule 60.06(3)(c):

A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

Don't forget, you heard it here first. Not that it should help him much anyway, because at least one of those representations is false.

* The WJC's next filing in the case is expected tomorrow.

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.]

Gableman's distinguished service

There was an interesting editorial the other day in the Dunn County News dealing with the Butler/Gableman campaign, and in particular criticisms leveled at Wisconsin Supreme Court Justice Butler by challenger Michael Gableman and his surrogates and supporters. The editorialist(s) write:

Criticism of Butler’s vote on a certain case is only valid if a critic makes a legal argument that Butler applied the law incorrectly. It is not valid to complain that his vote did not produce the result the critic preferred.

That's a fair assessment. Gableman has been making these sorts of charges against Butler at least since the two appeared for an online debate in January.

During it, Gableman repeatedly and baselessly derided Butler for grounding judicial opinions in the latter's "personal sympathies or feelings." Even the more sensible Butler critics, such as Marquette Law School's Rick Esenberg, will tell you that the results Gableman has in mind are defensible according to legal rationales. But Gableman's foolish and insulting characterizations are not.

The State Bar is hosting a formal debate between the candidates in Madison on March 25, and I sincerely hope someone gets up and expressly challenges Gableman on his evidence-free assertions. If Gableman is any kind of judge at all, he would never let a lawyer get away with comparable claims during, for example, a trial. And this campaign is essentially Gableman's own trial.

So somebody please put him on cross (without putting him on a cross; that only feeds the conservative persecution complex).

Taking judicial attendance

Meanwhile, the diligent investigators at One Wisconsin Now have uncovered more fascinating tidbits pursuant to what they call "Gableman's Suspicious Appointment" to his current Burnett County judgeship. The appointment, which was made by former Republican Governor Scott McCallum contrary to the procedures set in place by the governor's own executive order, has since been defended by Gableman in terms of McCallum's appreciation for the judge's "service" on a couple of statewide committees.

OWN obtained the minutes of one of them, the Wisconsin Judicial Council, and it turns out that of seven monthly meetings held between November 16, 2001, and May 17, 2002, Gableman only managed to turn up at two of them.

It would appear that Gableman's service, in this case, was distinguished primarily by his remarkable absence from it.

Quips blogger coldH20, "I guess he was Albert Einstein & Steven Hawking during those two meetings." Well, not exactly. Apart from once seconding someone's else's motion, the only other notable reference to Gableman in the 30 pages of meeting minutes concerns his request to be appointed to one of the Council's committees.

One would hope there was more to Gableman's involvement with the Council than that — he modestly describes himself as a "past member" at his campaign website — but OWN's evidence doesn't point to anything particularly distinguished about it.

So, scratch that "service" as one of the reasons Gableman finds himself on the county circuit court bench. And add it to the reasons why he shouldn't be elected to the State Supreme Court.

eta: Brazen Maverick spots a Gableman spot.

[Please visit the iT Butler/Gableman archive.]

CFAF "deemed" criminally inept: Part 3

Being a chronology of the pertinent events, with occasional commentary as appropriate (or not), since my good friend and longtime supporter Jay Bullock has indicated that I haven't made it entirely clear, and he's probably right. It's been a little difficult to find the time, but I'm counting on it being worth it in both the short and longer runs.

The rough chronology

01. The Coalition for America's families (CFAF) begins circulating the thoroughly unsupported and unsupportable falsehood that Wisconsin Supreme Court Justice Louis Butler "sides with criminals 60% of the time."

02. Burnett County conservative Republican Michael Gableman begins repeating the unsupported falsehood for the purposes of his ongoing attacks against Justice Butler. In fact, it's become the entire basis for the Gableman campaign, a campaign constructed and executed almost completely upon this overarching falsehood, as well as a number of other more specific falsehoods, many of which have been debunked at this blog and of course, by the Butler campaign and elsewhere.

Yet Gableman continues the phony attacks on Justice Butler's record undaunted.

I'm finding it increasingly difficult to refer to Gableman as "Judge" Gableman. While I'm not in a position to comment one way or the other as to his competence as an actual jurist in Burnett County, the judgment he has shown in conducting his appalling campaign of deliberately misleading characterizations of the law and the U.S. constitutional system generally is poor, to say the least. So henceforth Burnett County conservative Republican Gableman he shall be.

Since it's as a conservative Republican that Gableman is effectively campaigning in this statutorily-mandated non-partisan State election, he couldn't possibly take it as anything other than a compliment, and perhaps even as a gesture of support. It isn't. And as dedicated followers of your present correspondent are well aware, it clearly isn't meant as a compliment, either.

03. Despite Butler's numerous requests for clarification, Gableman refuses to do so, another hallmark of the Gableman campaign.

Witness Gableman's refusal to support with any substance whatsoever his objections to several individual cases in which Justice Butler participated, despite Butler's repeated requests. Gableman claims he can't comment because there may be issues that come before him on the Supreme Court (a singularly frightening proposition).

If that is so, then why isn't Butler himself as reticent to discuss them? Because he's already on the Supreme Court. Think about it. I have. I've reached a conclusion or two. More on that later.

04. The Butler campaign decides to respond to the baseless CFAF charges, and prepares a list of cases. A preliminary list of 62 cases is released to the press.

05. The preliminary list of 62 cases bearing mysterious numerical designations in sets of parentheses is seized upon by University of Wisconsin-Milwaukee journalism instructor and reputedly "influential Wisconsin blogger" Jessica McBride, who obtains another free Google Blogspot account and sets about her devious tasks, in typically unimpeachable and professionally objective, fact-intensive style. She also gets the opportunity to display her considerable legal acumen.

06. Meanwhile, unbenownst to the diligent investigative efforts of McBride, the Butler campaign releases a revised list, this one containing a total of 70 cases (71 if you count both Marquandts, which appear as one line item on the list of 70 cases.)

07. McBride inaugurates her latest free Google Blogspot account, the dispassionate- and authoritative-sounding "Election Watch Wisconsin." Hilarity ensues. And ensues.

08. Milwaukee Journal-Sentinel editorial board member and all 'round "right-wing guy" Patrick McIlheran lends his considerable influence to McBride's ridiculously inept hatchet job and accuses Justice Butler of "um ... prevaricating."

Marquette Law Professor and self-professing neutral party Rick Esenberg leaps to McBride's defense, straining all credulity, credibility, and whatever else one strains by leaping inadvisedly to the defense of hack reporters, whilst grasping at the opportunity to allege that Butler has "cooked the numbers" after glancing at three or four of the 70 case names and actually recognizing a couple.

Hilarity ensues.

09. McBride discovers revised list of 70 cases, which was released by Butler while she was hammering furiously at producing 07. Hilarity ensues. Investigative journalism award nominations sought.

10. CFAF "analysis" emerges, "deemed" steaming pile of miscellaneous bowel movement. Local blogger determines CFAF used the identical list of 62 cases as did 05. in a desperate but ultimately comically failed attempt to justify blatant misrepresentations of Justice Butler's record in criminal cases before the Wisconsin Supreme Court.

11. McBride returns with another fusillade of unsupported accusations, borderline defamation, and hilarious mispresentations of Wisconsin Supreme Court opinions. McBride's latest is noted to be uncannily similar in both content and order to 10. McBride, in a nearly identical fashion to CFAF's nonsensical claim, affirms CFAF's notorious "60%" figure as being in actuality "58%", supported by ... absolutely nothing.

Indeed, McBride's latest is an incoherent mess of a misleading dog's breakfast surpassing in gibberish-quotient perhaps even her previous two incoherent messes of misleading dog's breakfast. Example:

No wonder she doesn't allow comments. She classifies Justice Butler's role in a case called State v. Daley as, "pro-criminal."

"Court vacated appellate decision affirming conviction," is McBride's terse description.

While the defendant was indeed asking for review of the appellate court decision affirming his conviction, guess who also wanted the appellate decision vacated, because it conflicted with an earlier appellate court opinion?

Correct, the State of Wisconsin. And the reason the (UNANIMOUS) Supreme Court vacated the appellate court's decision was so the appellate court could revisit the case in light of the earlier decision, which is what the State, not the defendant, wanted.

That's an example of Justice Butler's "pro-criminal" attitude.

Patterns emerge. Questions are raised. Little doubt remains that McBride has been in close cahoots with CFAF, likely since day one. Hilarity ensues. Eventual complete collapse of conservative Republican Mike Gableman's bogus campaign of misrepresentations and unwarranted character assassination appears imminent.

Onward, finally, to the cases, the methodology, and the numbers.

Sneak preview: Butler was, and is, right on the money all along.

To part 4 ...

Gableman: Over the rainbow and out to lunch

Last Tuesday during his debate with Wisconsin Supreme Court Justice Louis Butler, Burnett County Judge Michael Gableman let fly this startling little shot across the bow:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities.

Gableman was apparently referring to a 2005 decision of the Wisconsin Supreme Court called State v. Dubose (.pdf; 63 pgs.).

Gableman's remark is instructive for a number of reasons, not the least of which is that it raises the question whether he even knows what he's talking about. As for 'citation,' it's a term of art, and it means something specific to lawyers. Aspirants to the Wisconsin Supreme Court, in my opinion, shouldn't play fast and loose with legal terms of art for the sake of mugging in front of the crowd.

It's not only misleading, it's dishonest, because one would expect Judge Gableman to fully understand what is meant by them.

First of all, Dubose was authored by Justice Patrick Crooks, not Butler. Second, Dubose embodies a very complicated due process analysis that involves revisiting a number of Wisconsin and U.S. Supreme Court cases in light of a considerable amount of more recently obtained empirical data having to do with the reliability of eyewitness evidence, and in particular evidence gathered through a certain type of police identification procedure. To put it mildly, Dubose does not lend itself to one-liner soundbites, especially the utterly nonsensical one offered by Gableman.

And one has to be especially careful reading Dubose because it contains three separate dissents, by Justices Wilcox, Prosser, and Roggensack. Each takes issue with the majority opinion for different reasons. It requires some serious work just to tease out the competing strands of analysis in Dubose, let alone portray it accurately for the layperson. To reduce it to, "He cited The Wizard of Oz" is, on a charitable reading, an act of negligence and, to my mind at least, raises a concern as to Gableman's suitability for the position he seeks.

While Butler joins Crooks's DuBose opinion in full, he writes separately only to shed light on a failure he detects in Justice Roggensack's dissent. To wit, Roggensack relies, at one point, on the very data she had derided as "disputed social science theory" only a few paragraphs previous. That's about the entire thrust of Butler's very brief concurring opinion. His apparent sin, to return to Gableman's dishonest characterization, was to criticize Roggensack's skepticism over the empirical data by saying this:

Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the Land of Oz.

That's it. A figure of speech, hardly the "citation" that Gableman would attempt to have us believe.

Incidentally, our good friend Daniel Suhr is also completely wrong (surprise) when he claims that Butler wrote to "especially defend" the majority's use of the empirical data. He was not "especially defending" the majority, he was "especially criticizing" one of the dissents for a glaring error of reasoning. It is notable, however, that Suhr also makes an issue of Butler's offhand reference to the "Land of Oz." It's almost as if Gableman was presented with Suhr's "Research Briefing" in preparation for his debate with Butler. D'ya think?

Suhr, by the way, can be more easily excused for his ineptitude than can Gableman, since Suhr hasn't sworn his lawyer's oath yet. (If there's a god in heaven, my humble prayer to her or him is that Daniel Suhr pulls Justice Butler for his swearing-in ceremony.)

Gableman's portrayal of empirical data as "manufactured" at colleges and universities is also quite telling, and he is kidding himself — and the Wisconsin electorate — if he thinks he'll just be able to laugh off relevant empirical studies prepared by the U.S. Department of Justice if and when he finds himself on the Supreme Court.

It's often said that there's a crock of gold at the end of the rainbow, but it appears that Judge Gableman is entertaining us to a crock of something else, something more fragrant than gold.

[Please visit the iT Butler/Gableman archive.]

CFAF "deemed" criminally inept: Part 1

Overture: "Family" values

Recently, Burnett County Judge Michael Gableman began repeating a mysterious — some might call it "shadowy" — number that had been circulating in some advertising materials originating with an outfit called the Coalition for America's Families (CFAF), which operates out of Middleton, WI and claims to be dedicated to the "sanctity of life" and so forth.

CFAF's chairman is a gentleman called Steve King, and CFAF's website describes Mr. King as "one of Wisconsin's leading conservatives" and a former chairman of the Republican Party of Wisconsin. You get the picture. CFAF has claimed that Wisconsin Supreme Court Justice Louis Butler "has sided with criminals nearly 60% of the time."

Regular readers of this blog are no doubt aware that I am, to say the least, not exactly enamored with conservative Republicans generally and particularly those that pontificate from organizations adorned with the word "Family." Experience has taught me not to trust them. And what follows is a polestar example of why I don't trust them and furthermore why they shouldn't be trusted. By anyone.

CFAF's disingenuous gameblemans

Let's set aside, for the time being, the whole idea of evaluating a judge based on "siding with criminals," which is immediately indicative of an absurd methodology and especially absurd with regard to the functions of a State's highest appellate court, which spends most of its time in the area of criminal law dealing with complex and subtle constitutional and procedural questions and where in most cases "siding with criminals" more accurately means "applying and enforcing the Bill of Rights."

Do we have a problem with the Bill of Rights generally? Of course not. Can reasonable minds differ over the scope of the protections afforded by those rights? Of course, and we do. Anybody that's ever set foot in a law library — or surfed the intarnets tubes, for that matter — knows that.

But that is not how CFAF has framed the question. It has already decided, in advance, that whenever Justice Butler or, by extension even the most judicially conservative of his colleagues with whom Butler often sides decides a case the "wrong" way, they are not interpreting the Bill of Rights, they are "siding with criminals." The inherently farcical nature of CFAF's project should be blindingly obvious from that ridiculous and constitutionally offensive attitude alone.

In short, attempting to quantify such a comically loaded description is a fool's game from the outset. Yet, we shall proceed nevertheless.

Recall — and this is crucial — that it was supporters of Gableman and Gableman himself that began circulating what is, as I shall presently demonstrate, essentially a complete fabrication, and a misguidedly and apparently deliberately twisted one at that.

Up until now, nobody has really known what that statement even means. Least of all, amazingly, Mike Gableman himself. In one of the more outrageous statements during a campaign overflowing with absurdities and deliberate misrepresentations, Gableman actually announced in public that, despite his repeating the claim to all who would listen, Gableman didn't know the first thing about what it even meant, that he didn't know whether the figure was 30%, 60%, 90% or what. And again, yes, he actually said it out loud. So loud that it was even reported by the Milwaukee Journal-Sentinel. But nobody, especially those among Gableman's supporters, seemed to care.

As a matter of fact, they started repeating it too.

Butler responds

In the meantime, the Butler campaign undertook a review of the cases of its own. While nobody, least of all Michael Gableman, seemed to know how the "sided with criminals 60% of the time" came about, Butler, speaking to the Journal-Sentinel's editorial board, was quite clear about what criteria his campaign had used. Butler said that where criminal cases and related procedural issues were involved, his campaign went through the cases and counted each conviction individually.

For example, in a Supreme Court case dealing with a defendant convicted of three separate charges, where Butler had voted to reverse one conviction but leave the other two intact, then he would count one against his record dealing with criminal defendants and two in favor of it.

This is, essentially, how the Butler campaign came about its stated figure of 70:30 (or 75:25). 70:30 means that of all the convictions related to the cases put before the Wisconsin Supreme Court during Butler's tenure, Butler's own votes would have reversed 30% of the convictions, and 70% would have the convictions remaining in force, regardless of whatever related procedural issues the court was addressing.

As a matter of fact, Butler counted against himself his own dissenting votes, where he was in the minority, ruling that a conviction should be reversed, even though it never was, because, obviously, a dissenting vote carries no weight to reverse a conviction.

Butler's approach to reaching his number makes eminent practical and legal sense. Let me explain why.

A criminal law primer

At the heart of every criminal case lie convictions. Convictions are obtained when (1) the defendant pleads guilty to violating one or more specific State statutes and is thereupon convicted by a judge and/or when (2) the defendant is found guilty after a trial of violating one or more State statutes and is thereupon convicted by a judge.

Moreover, the United States Constitution explicitly requires due process of law. Due process of law refers to, at a minimum, those procedures to which the accused is constitutionally entitled as the government goes about meeting its burden of proof in demonstrating the guilt of those accused of crimes who, up until that point, the law presumes to be innocent.

Due process itself is a gigantic and complex area of the law and applies to every aspect of the criminal process from police investigation to the initial filing of charges against the defendant through hearings and trial to conviction, sentencing, and beyond.

For these and still other reasons, due process of law is one of the absolute bedrock principles contained in the U.S. Constitution. It's importance cannot be overstated. And, never forget, the U.S. Constitution is, quote, "the supreme Law of the Land; and the Judges in every State shall be bound thereby."

Sometimes a convicted defendant appeals his conviction directly. But most of the time a convicted defendant appeals some aspect of the process that led to the conviction. That might be a question of the admissibility of evidence presented at trial. It might be the circumstances under which the defendant pleaded guilty. It may be some action taken — or not taken — by the police, in which still other provisions of the Constitution are implicated.

But the point is, ultimately, that if there is any common denominator in all criminal cases, it is the conviction. That is what criminal law is all about: the State seeking convictions, and the defendant often seeking to avoid them. That's what it boils down to.

Flagrant acts of "journalism" alleged

As I said, the initial figure accusing Butler of "siding with criminals 60% of the time" originated with CFAF and was repeated by Mike Gableman and others. Butler challenged Gableman to back it up but as I also noted, Gableman admitted he didn't even know what it meant. But that didn't stop Gableman from repeating it anyway.

Then apparently the Butler campaign produced a list of 62 cases according to counting convictions, and a person by the name of Jessica McBride got her hands on it, and produced a vicious attack piece against Butler that proved at least two things: she didn't know what she was looking at and she didn't realize — or check to learn — that the list of 62 cases was an intermediate, draft working copy and that the Butler campaign had produced a more complete list in the meantime, containing 70 cases.

Although McBride purported to attack Butler's claimed 70% figure, she quite obviously didn't know how to go about deconstructing it, because she didn't know the basis for the number in the first place. Instead, she focused on some brief descriptions noted beside the names of the cases on the list. But you don't attack a numerical calculation by interpreting words.

It could have said, for example, "vibraphone kyrgyzstan wankel rotary engine" beside the case name for all it mattered. What did, and does matter was the typical numerical designation assigned to the case, for example, (2:1), which means that the case came to the Supreme Court involving three convictions — or "counts" — and that Butler voted to reverse one of the three and leave the other two intact.

The accumulation of these numbers leads to the 70% overall figure. It's as simple as that. It's true that some of the "vibraphone kyrgyzstan wankel rotary engine" descriptions are not quite accurate in the context of what really happened in the Supreme Court opinion, but has zero effect on the numbers.

Unfortunately in her zealously partisan ignorance, McBride went bananas over the "vibraphone kyrgyzstan wankel rotary engine" bits, and produced her outrageously over-the-top diatribes.

After McBride learned that there was another list of 70 cases, she went ahead and performed the same wildly inaccurate "analysis" on it.

The enablers I

While all of this was immensely amusing to me and several others, apparently a few more sober observers actually took it seriously. Patrick McIlheran of the Milwaukee Journal-Sentinel editorial board, for example, who trumpeted McBride's laughable attempt at smearing Justice Butler by attacking the numbers with the words and has since gone on to continue defending it.

McIlheran, of all people, is about the last person that should let himself get duped by McBride's shoddy labors, because he literally sat across a table from Justice Butler as Butler explained how he produced the 70% figure. McIlheran continues to insist McBride's bizarre efforts have merit — as does Professor Rick Esenberg of Marquette University who, to his credit, has at least backed away from his initial and equally baseless charges that Butler somehow "cooked the numbers" — but for some reason McIlheran strikes me as a potentially reasonable fellow, and I have faith he'll come around.

McBride, obviously, is a total write-off.

Which brings us to our latest development: CFAF's hilariously desperate attempt at justifying its "Butler sided with criminals 60% of the time" mythology. FAIL.

To part 2 ...

CFAF "deemed" criminally inept: Part 7

31. State v. Anderson 2004AP2010-CR

Five separate errors by the circuit court at trial, plus jury prejudice. Judgment of conviction reversed, Butler and Prosser sign on with the majority. Count one "against" Justice Butler. CFAF misses not only its opportunity to object, but also its chance at a motion to strike.

Once again, how absolutely ridiculous to count "against" a State Supreme Court Justice a decision in favor of insisting that an individual under the U.S. constitutional system should receive a fair trial. But, Butler's detractors insisted on playing this stupid game, and because Gableman and his supporters have made what is supposed to be a non-partisan contest of legitimate ideas into a sleazy partisan campaign of falsehoods, misrepresentations, and phony GOP "gotcha" tar and feathering, Butler has little choice but to respond.

And, also once again, in that Butler has provided the common denominator of convictions for evaluating each case, he is correct. Professor Esenberg continues to insist that "rulings in favor of the defendant's interest" or some such thing is the proper denominator. What Esenberg continues to ignore, however, is that "rulings in favor of the defendant's interest" is far too subjective a determinant.

Very early on in their careers lawyers — together with anyone in any scientific or rigorous philosophical discipline — learn about objective vs. subjective tests. And Esenberg knows as well as anybody that one "ruling in favor of a defendant's interest" is hardly equal to another. Compare, for example, the case of State v. Parent (see # 20. below). Parent won the right to sneak a glance at his pre-sentencing report. But he couldn't copy it, he couldn't repeat what he saw in it to anyone, and the government retained the discretion to redact it in advance. Whoop-de-do. You'll never hear "law and order" Mike Gableman make a major league stink about that one.

On the other hand, consider the case of State v. Knapp (which Gableman seemingly hasn't even read — read the post and then the first comment. And if Dad29 turns up, just pat him on the head and ignore him). State v. Knapp, Gableman and his screeching monkey pals like Charlie Sykes will tell you, has effectively begun the inexorable collapse of Midwestern Civilization As We Know It.™

Incidentally, Gableman was still droning on monotonically about Knapp during last night's final debate. And once again, Justice Butler challenged Gableman to address the merits of Knapp, and to describe how Gableman would have decided or at least approached the case, and in particular its relationship to the two U.S. Supreme Court cases that Butler spent 46 pages of the opinion (number one monkey pal says Butler "ignored" them) engaging, analyzing, and applying against the facts and the relevant existing Wisconsin caselaw.

Hell, I bet even I could have a damn good discussion with Butler on Knapp, and maybe even compellingly argue the opposite side, and I'm just some anonymous blogging punk. Gableman, predictably, just ignored Butler's challenge and jabbered robotically some more about his salad days as a prosecutor in Ashland County or something.

Not only that, but many — nearly all, actually — "rulings in a defendant's interest" are not only not specific to that defendant, but the underlying reasoning sets a rule of constitutional law, whether creating a new one, broadening or narrowing existing ones, or affirming without either broadening or narrowing some imperative of constitutional protection.

And, as I'm almost exhausted from repeating, constitutional protections are for ALL Americans, not just that defendant in a particular case.

Convictions, on the other hand, are specific to that defendant and are objectively equal, whether for first-degree homicide or theft under five grand. That's why they're the best denominator for this sort of exercise, and why Butler is correct to base his representations on them. Besides, Butler should know, he's been either practicing criminal law or judging for nearly 30 years.

Indeed, isn't that what's under discussion here, Butler's decisions as a Justice on a State Supreme Court? Land sakes. Yet Esenberg insists we should use, of all people, Jessica McBride's method and interpretation of caselaw? It's almost perverse.

Especially considering Esenberg has been all over the map in terms of attempting to defend McBride's demonstrably sloppy work. Last I saw, he was disappearing into the horizon, carried away by the shifting sands of the Gobi.

Most recently he's telling us that it's not an evaluation of Butler's record anymore, now it's a comparison of all the Justices' records. Well, look closely again at McBride's pretty bar charts. Because McBride is still claiming "58%" — the exact same number CFAF arrived at, and we're seeing what a load of crap that is.

Now he wants us to not only accept her "method" with respect to Butler's record, but now to all the other Justices too? Is he kidding?

This is the same Jessica McBride who will refer to a mentally and physically disabled victim of sexual assault as a "criminal" so long as it suits her cheap partisan political purposes. Or accuse Butler of lying, or deliberately deciding cases to further his own personal ambitions, none of which she has ever provided the slightest whiff of evidence for. It's outrageous, to say the least.

I would imagine Louis Butler has spent a considerable amount of time thinking about criminal law quite a bit. More, I daresay, than the average Marquette law professor (with the possible exception of the formidable and deservedly legendary Dan Blinka).

And more, I am certain, than a partisan hack like McBride.

If you still don't think convictions are a suitable denominator by which to assess these cases, ask any prosecutor. Convictions are what they're after, and what drives them. Their own job performance is evaluated according to securing convictions. Theft, murder, battery, carnal knowledge of chickens, whatever.

Hey, why not ask Mike Gableman, he was a prosecutor in Ashland County in 1999. More than likely the poor sod is just crying out for a question that he can actually engage and answer.

ttfn

To part 8 ...

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.]

Gableman misconduct was willful: WJC

According to the latest filing in the matter of Wisconsin Judicial Commission v. Michael Gableman, then-Circuit Court Judge Gableman was "not pleased with the 'tone' of the [television] ad" he ultimately approved for release against his political opponent, former Wisconsin Supreme Court Justice Louis Butler.

The WJC's statement of facts, submitted on February 27 in the ongoing investigation into Gableman's campaign activities last spring, alleges that Gableman's political advisers urged him to release the ad in response to other advertising produced not by Justice Butler's campaign but by third-party groups.

Both Gableman and his advisers considered those ads to be "devastating," as well as "blistering, negative, and false."

However, Gableman did not produce a response directed at the "blistering" third-party groups. Instead, he unleashed a most scurrilous personal attack against Louis Butler, linking him in an extremely misleading fashion to a convicted child molester.

Many observers detected in it racist overtones as well.

Perhaps Gableman, who is himself currently installed on the Wisconsin Supreme Court, deserves some credit for the fact that the television ad initially gave him pause and according to the Judicial Commission, Gableman delayed its release for several days while he considered possible alternative messages.

But he ended up releasing it exactly as formulated, thus negating any credit to which he may have been entitled.

This is somewhat devastating in and of itself, as it gives a strong indication of what Gableman thought of the ad, which in turn functions as support to the allegations that he knew precisely what he was doing when he authorized its release and broadcast.

Even more remarkably, although Gableman claims to have been troubled by statements issuing from third-party groups, he rather chose to direct his response to them against Justice Butler, who not only had no connection to the third-party outfits, but had openly condemned them on many occasions.

A willful violation of the code of judicial ethics constitutes a violation of Wis. Stat. § 757.81(4)(a), judicial misconduct. Penalties range from a private reprimand to suspension or expulsion from the court.

By comparison, in the most recent finding of ethics violations by a sitting judge, those of Gableman's current colleague Justice Annette Ziegler, a majority of the Wisconsin Supreme Court wrote:

Although the violations in the instant case are serious and were willful as defined in the statute, the violations were, as we explain below, also inadvertent. The Judicial Commission has characterized the violations as resulting from neglect and as serious.

Furthermore, a discipline of suspension or removal is not necessarily consistent with our past judicial and attorney discipline cases. Prior judicial misconduct cases in which judges received a sanction more severe than a reprimand all involved some degree of moral culpability that is not present here.

For her "inadvertent" violations, Justice Ziegler received only a public reprimand.

But the particular allegations against Michael Gableman certainly do not appear to have contained similarly mitigating elements of "inadvertent" conduct, at least insofar as he reportedly mulled over the television advertisement's content for several days.

As to the question of moral culpability, it most likely inheres in Gableman's conscious decision to go after Justice Butler personally in response to messages originating with third-party entities over whom Butler had no control and indeed had himself likewise condemned.

That's not the manner of judgment one should expect from a judge. Of course, Gableman's moral culpability was on display throughout his political campaign. The subject of the WJC investigation was arguably the most egregious instance, but there were others as well.

Michael Gableman has until April 1 to reply to the WJC's statement of facts (.pdf; 7 pgs.). No date has yet been set for Gableman's hearing in front of a three-judge panel, but it will take place in Waukesha County. The panel's recommendations then go to the Supreme Court.

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.

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.

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.