Bit of a disadvantage

Wisconsin Supreme Court Chief Justice Shirley Abrahamson reported Monday that she raised nearly $823,000 in 2008. Her challenger Jefferson County Circuit Judge Randy Koschnick raised $14,700 over the same period.

Via WKBT La Crosse. But see, 35k claimed raised in January:

On Jan. 1, the Abrahamson campaign reported cash on hand of $696,100; the Koschnick campaign, $14,160.

Odd, when Steven Walters's item first appeared, that line read:

On Jan. 1, the Abrahamson campaign reported cash on hand of $696,100; the Koschnick campaign, $570.

So Randy Koschnick only spent $540 in 2008? Campaign person Seamus Flaherty must have one hella pile of invoices on his desk.

I spent $540 at T.J. Maxx.

Koschnick "unaware" of the law

Last week we learned that the political campaign of Jefferson County Circuit Court Judge Randy Koschnick is playing a little fast and loose with the facts of State v. Knapp, the infamous "bloody shoes case" Koschnick is using to attack Chief Justice Shirley Abrahamson.

Now we discover that Judge Koschnick and his supporters are engaging in a similar enterprise with the law, and attempting to solicit money from its propagation.

A fundraising letter authorized and paid for by Judge Koschnick's campaign and attached with a return-addressed envelope to stuff with cash contributions makes the following claims:

Invoking principles of "new federalism" Abrahamson voted with the majority to require suppression of physical evidence obtained as the result of un-Mirandized statements. Wisconsin is the only state who [sic] affords this protection to criminal defendants.

The latter assertion is presumably made in furtherance of Judge Koschnick's repeated insistence that Chief Justice Abrahamson is not only an "activist" who "legislates from the bench," but is also one who does so in an especially radical and solitary manner.

Only one small problem: The claim is demonstrably false and the four cases following below clearly demonstrate its falsity. One of the four is actually discussed at length in Justice Patrick Crooks's concurring opinion in Knapp, the very decision that Koschnick is criticizing.

The other three were issued by State appeals courts after State v. Knapp appeared in 2005. The most recent is already nine months old.

At last Thursday's candidates forum, the Chief Justice, after reminding him that the fundraising letter uses the present tense, gave Judge Koschnick several opportunities to retract the claim.

"Still think that's a correct statement?" she inquired. "I do," Judge Koschnick replied, "I don't think that those decisions allow for suppression of physical evidence following a Miranda violation."

Well, they do.

While some might believe this to be an insignificant matter, were a lawyer on the record in court to insist for the purposes of her legal argument that Wisconsin is the only State "who" adheres to a particular position on a particular question of law, she could very well be facing professional sanctions.

As an aside, it's interesting to note that an aspiring Republican operative by the name of Daniel Suhr also put forward false claims concerning two of the four cases, Farris and Peterson, which were previously addressed at this blog here and here last winter.

Mr. Suhr was attempting to show the invidious interstate influence of former Justice Louis B. Butler by asserting that the highest courts of Ohio* and Vermont derived inspiration from and followed the Wisconsin Supreme Court's reasoning in State v. Knapp.

This is also demonstrably false, as both courts clearly arrived at their conclusions independently and based those conclusions ultimately on their own State precedent, their own interpretation of federal decisions, and their own State constitutions (that final deference being indicative of the "new federalism" of which Koschnick speaks).

But while Suhr was also completely wrong, his false assertions are independent of Koschnick's more recent ones, as Koschnick is now claiming that Wisconsin is the only (italics Koschnick's) State that suppresses physical evidence where the suspect is not afforded a constitutionally adequate Miranda warning, whether that State actually relied on Knapp or not (which, by the way, none of them did).

Daniel Suhr was graciously forgiven for his partisan zeal and gross errors, as he was at the time yet to take his own attorney's oath before a justice of the Supreme Court (I hope it was Louis Butler).

But at least Suhr was "aware" of the law, much like an aspirant to the Wisconsin Supreme Court should be, especially when it's related to a question that appears to be the centerpiece of his political campaign.

The current incumbent certainly appears to be aware of it.

Unfortunately, Judge Koschnick's errors can be less easily dismissed — for a number of very obvious reasons. Here are the cases, along with some relevant excerpts:

Commonwealth v. Martin, 827 N.E.2d 198 (Mass. 2005)

The question presented in this case is whether the failure to give Miranda warnings to a suspect in custody requires suppression of physical evidence derived from an unwarned statement he made in response to police interrogation. Prior to the recent decision of the United States Supreme Court in United States v. Patane, 542 U.S. 630 (2004), the answer (at least in Massachusetts) would clearly have been "yes." We have consistently held that statements obtained in violation of the principles laid down in Miranda v. Arizona, 384 U.S. 436 (1966), are not admissible in evidence themselves, and may not properly be used to secure additional evidence for use at trial.

Because we conclude that the Supreme Court's construction of the Miranda rule, which was intended to secure the privilege against compelled incrimination in the context of inherently coercive custodial interrogations, is no longer adequate to safeguard the parallel but broader protections afforded Massachusetts citizens by art. 12, we adopt a common-law rule governing the admissibility of physical evidence obtained in these circumstances. Such evidence, if derived from unwarned statements where Miranda warnings would have been required by Federal law in order for them to be admissible, is presumptively excludable from evidence at trial as "fruit" of the improper failure to provide such warnings.

State v. Farris, 849 N.E.2d 985 (Ohio 2006)

To hold that the physical evidence seized as a result of unwarned statements is inadmissible, we would have to hold that Section 10, Article I of the Ohio Constitution provides greater protection to criminal defendants than the Fifth Amendment to the United States Constitution. We so find here.

We believe that the overall administration of justice in Ohio requires a law-enforcement environment in which evidence is gathered in conjunction with Miranda, not in defiance of it. We thus join the other states that have already determined after Patane that their state constitutions’ protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements.

Thus, the physical evidence obtained as a result of the unwarned statements made by Farris in this case is inadmissible pursuant to Section 10, Article I of the Ohio Constitution.

State v. Peterson, 923 A.2d 585 (Vt. 2007)

We agree with the analysis and result reached in each of these cases [Farris and Knapp].

For the above reasons, we conclude that we will not follow United States v. Patane under Article 10 of the Vermont Constitution and our exclusionary rule. Physical evidence gained from statements obtained under circumstances that violate Miranda is inadmissible in criminal proceedings as fruit of the poisonous tree. Since it is undisputed that the marijuana plants were such fruit in this case, the district court erred in failing to suppress them.

State v. Vondehn, No. C040956CR (Or. Ct. App. filed April 30, 2008)

For the foregoing reasons, Patane does not undermine our conclusion that police exploitation of conduct that violates rights that Article I, section 12, protects will taint any evidence that the police obtain in the same way that conduct that violates Article I, section 9, does. (fn 15) Accordingly, we conclude that the Hall analysis applies to evidence that the police obtain as the result of exploiting a Miranda violation and that that evidence is inadmissible at trial.

The question in this case, thus, is whether the police obtained defendant's post-Miranda statements by exploiting both his pre-Miranda statements and the evidence that they obtained from the search of the backpack, evidence that was itself the fruit of the previous exploitation of the original illegality. We conclude that they did.

(fn 15) In so concluding, we join the other states that have already determined after Patane that their state constitutions' protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements. See, e.g., State v. Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 109 Ohio St. 3d 519, 849 N.E.2d 985 (2006), cert. den., Ohio v. Farris, ___ US ___, 127 S. Ct. 1371 (2007); State v. Knapp, 285 Wis. 2d 86, 700 N.W.2d 899 (2005); Commonwealth v. Martin, 444 Mass. 213, 827 N.E.2d 198 (2005).

Wisconsin is the only State? Not exactly.

I can't speak for anybody else, but I would surely expect a qualified candidate for the Wisconsin Supreme Court to apprise himself of the current state of the law before he attempted to deploy it against his opponent for purely political (and fundraising) purposes.

* As an attorney acquaintance of mine who spent many years practicing in the Buckeye State colorfully observed back then:

"The interesting fact to me is that everyone in the majority on the Ohio decision [State v. Farris] — Justices Pfeifer, O'Connor and Lanzinger, along with Chief Justice Moyer — is a lifelong, old-school, law-and-order Republican.

"The notion that some wild-eyed liberal from another state could lead those four people down the garden path toward a real world Grand Theft Auto: San Andreas is preposterous beyond description."

Olympic champ inks endorsement deal

With RooR Bongs.

Seriously, cut the kid some slack already. He won seven gold medals, for crying out loud. He's entitled to a couple of hits at the bong.

After all, they're his lungs, as John Stuart Mill might say.

Reasonable minds

If we do not suppress physical evidence in situations of intentional violations of Miranda, we, in essence, undermine the deterrent effect upon which such a decision was based.

The rule argued for by the State would minimize the seriousness of the police misconduct producing the evidentiary fruits, breed contempt for the law, and encourage the type of conduct that Miranda was designed to prevent, especially where the police conduct is intentional, as it was here.

— 25% pro-criminal Justice N. Patrick Crooks

The Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision.
. . . The Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.

We disagree with the Court of Appeals' conclusion . . .

— 0% pro-criminal Chief Justice William H. Rehnquist

La manta ¿Qué chingados?

This commercial is shown in Spanish on Milwaukee buses:

Help Grandpa enjoy the O'Reilly Factor (YouTube)

Fumbling facts for Koschnick

By the press, that is. — Cory Liebmann

fwiw, I could not agree more.

Those bloody bloody shoes

Xoff scored this earlier, but:

Detail in Koschnick's 'bloody shirt' campaign issue emerges

So Judge Randy Koschnick himself had ruled to exclude even more damning evidence at trial: two pairs of blood-spattered shoes. His ruling was reversed by the Wisconsin Supreme Court in Knapp I.

The best part is the Koschnick campaign person's response:

Asked if Koschnick was omitting a detail of the murder case to help his campaign, Seamus Flaherty said, "We’re telling the whole story to the extent that it is relevant in this election."

I can see this guy is going to be a real barrel of laughs.

By the way, Journal-Sentinel reporter Steven Walters writes:

The issue was twice considered by the state Supreme Court, and once by the U.S. Supreme Court, because a police officer did give Knapp a Miranda warning before asking him what clothes he had been wearing. That led to the discovery of the blood sweat shirt.

No.

The issue was twice considered by the state Supreme Court, and once by the U.S. Supreme Court, because a police officer deliberately and intentionally did not give Knapp a Miranda warning before asking him what clothes he had been wearing. That led to the discovery of the bloody sweat shirt.

Fixed.

More precisely, the relevant U.S. Supreme Court decisions did not directly address the Wisconsin case insofar as it involved the deliberate and intentional withholding of the Miranda warning.

That fact is crucial to a meaningful understanding of the Wisconsin Supreme Court's disposition in Knapp II. But it's something you're also unlikely to hear from the Koschnick campaign.

I guess because it's not "relevant in this election." The hell it isn't.

When you're grandstanding about "tying the hands of law enforcement," best be aware of what law enforcement was up to.

See also: One Wisconsin Now's press release (.pdf).

Pro-Life House GOP votes 188-0

Approves $1.4 billion stimulus package to octuplet mom

Non-golfer wins RNC Open

Dawson's final round a five-over-par 77

Math is hard

Judge Randy Koschnick, as promised by an anonymous commenter at this location, has released his "calculations" to the Wheeler Report.

For example Michael Gableman, according to Koschnick campaign person Seamus Flaherty, has participated in two decisions whose docket number contains the suffix "-CR" as of January 30, 2009.

Except the correct number is three. Makes you wonder about any of the larger figures on Flaherty's document. It's occasionally observed that lawyers' facility with numbers is tenuous, but this is ridiculous.

(The Chief Justice also "voted against the criminal" in all three.)

Randy Koschnick's double standards

Jefferson County Circuit Court Judge Randy R. Koschnick has found himself a tough row to hoe and he's scratching a desperately erratic course right out of the gate.

Koschnick appeared at the first of several planned candidate forums yesterday in Green Bay with the incumbent Chief Justice of the Wisconsin Supreme Court, Shirley S. Abrahamson.

The county (pop. 81,000) circuit judge claims he's "more qualified" than the State (pop. 5.4 million) Chief Justice, who has been on the Supreme Court for 32 years. I can see the "more qualified" schtick maybe being effective between two untried candidates for an open seat. But in this instance, it's bordering on the fatuous.

So why, exactly, is Koschnick more qualified? Because he's a "conservative" and because he won't "legislate from the bench." Groovy. But that's about the full gist of his positive message.

His negative message, which he's working at far more emphatically, is that the Chief Justice is an "activist," whatever that's supposed to mean beyond its obvious utility as a Republican Party code word in a non-partisan election (at least, State law tells us it's non-partisan).

Presumably, Koschnick believes that what worked for Michael Gableman will work for him (after all, Koschnick's campaign website URL is registered in the name of Darrin Schmitz, the Republican functionary who masterminded Gableman's scurrilous antics).

This morning's press reports — almost needless to say — completely ignore a number of the more salient messages presented by yesterday's forum. Here are a few.

At one point during the forum, by way of claiming that the Chief Justice does otherwise, Koschnick asserted that it was an improper role for judges to be shaping public policy. But afterwards, he told a reporter:

When the voters compare our philosophies, they'll prefer my judicially conservative philosophy, because it enhances public safety, and because it creates a more stable business environment, which is good for our economy.

What's that "philosophy" supposed to be shaping, then, a ham sandwich? And that wasn't the only double standard he employed.

As noted here previously, Koschnick, following on Gableman's ethically questionable heels, has been toiling away at cherry picking a few of Chief Justice Abrahamson's decisions (whether she authored them or not) and trying to use them to portray her as some kind of wild, outlying radical.

Criticizing Abrahamson for her position in State v. Dubose, Koschnick claimed that that decision was based not in the law but rather on "psychological manuals." This was supposedly offered as an example of the Chief Justice's "activism."

Yet just a few scant moments later, Koschnick defended the constitutionality of Wisconsin's violent sex offender commitment statute, Chapter 980.

Chapter 980 is a set of civil procedures that can be reduced essentially to a behavior-predictive "battle of the experts" in court whose credentials and testimony are almost entirely grounded on — you guessed it — "psychological manuals."

Koschnick also discovered that cherry picking a half-dozen decisions from among the 3,500 the Chief Justice has participated in can be a game for two to play, and he was visibly taken aback at the mention of several of his, where Koschnick's own trial court decisions were reversed on appeal.

In one of them, a unanimous court of appeals (including Patience Roggensack, herself now a "conservative" member of the Supreme Court) determined that Koschnick had "exceeded [his] authority" and that Koschnick's ruling was "directly contradictory" to the plain language of the Wisconsin administrative code (and not only the plain language, but the explicit definition of words and phrases contained in the code).

After several discomforting moments of complete speechlessness, Koschnick brushed his reversals aside by alleging that they involved "close questions" upon which "reasonable people can disagree."

Yet the decisions he is attempting to hold against the Chief Justice are exactly that. This is a textbook double standard.

Abrahamson quipped that she'd been affirmed by the United States Supreme Court on several occasions, but she'd "never had an appeals court tell me I was in violation of a statute."

A further enlightening moment occurred when Abrahamson produced a piece of Koschnick campaign literature claiming that Wisconsin is alone among the States in following the reasoning in State v. Knapp, the so-called "bloody shirt shoes case," another favored hobbyhorse left over from the Gableman campaign.

Asking Koschnick whether he stood by this claim, Abrahamson went on to name several other States whose reasoning is in accord with Wisconsin's, including one mentioned in one of the U.S. Supreme Court cases from whence Knapp itself is derived.

This produced another bout of speechlessness on Koschnick's part. He obviously hadn't performed the 50-State survey necessary to make such a sweeping claim about the Supreme Court's decision in Knapp.

That should have been an embarrassing moment, as 50-State surveys (researching the position of State courts on a particular legal question throughout the Union) are a feature of your typical first-year law school course (and drone labor for summer associates).

Additionally, Koschnick mischaracterized Dubose, which he suggested banned all of a certain police identification procedure. That's false. What it may bar is the admission of evidence at trial obtained from that police procedure, and even then only that evidence obtained where the procedure is unconstitutionally suggestive.

Koschnick, it seems to me, would rather listeners not pay too close attention to what he is saying, but he's certainly not going to get anything past a 32-year veteran of the Supreme Court.

He'd prefer to ramble on about ill-defined (if defined at all) notions of "activism," so that's what he does, to the point of excessive tedium.

Which is not surprising, because he needs to appeal to the least-informed of voters: those who react best to empty buzzwords.

And this is how we populate the highest court in the State?

After the forum, Shirley Abrahamson told a reporter, "There's an attempt here to make a promise by my opponent, and I don't think that's right. I think if you want to make promises and impose an ideology, you ought to run for the legislature."

Exactly correct. By cherry picking a few of Chief Justice Abrahamson's hundreds of decisions, Randy Koschnick is clearly stating an implied promise to rule otherwise on similar cases and issues. But from the looks of things thus far, he doesn't have much else on offer.

So desperate is Koschnick already that he even pulled the goofiest canard from the Gableman playbook, and claimed that the Chief Justice "voted with [criminal] defendants 60% of the time."

It's unclear how much more we're to hear about this absurd and long-since debunked tactic, but a number of local news outlets, including the Milwaukee Journal-Sentinel, picked up on it and used it as their headlines in their reporting on yesterday's event.

Journal-Sentinel editorial board member Patrick McIlheran's own deployment of this indefensible ruse was a thoroughgoing disgrace.

If the Wisconsin press continues in that vein, it won't exactly be covering itself in glory. Once again. Fortunately some of us will be paying closer — and far more accurate — attention.

Koschnick pulls a Gableman

Here we go. It was bound to happen.

At this afternoon's campaign forum featuring Wisconsin Supreme Court Chief Justice Shirley Abrahamson and Jefferson County Circuit Court Judge Randy Koschnick, the latter accused the Chief Justice of "voting with [criminal] defendants 60% of the time."

Let's just say that Koschnick's latest shenanigans are not going to endear him to a whole lot of people (present company adamantly included) and they're more evidence that he's clearly not planning on running the sort of "clean campaign" he'd "pledged" to run.

This blog will have more on today's forum, at which the Chief dusted Koschnick off pretty effectively, among other highlights forcing him to admit to a number of blindingly obvious double standards.

But in the meantime, here's some sense of déjà vu all over again featuring the comic numerology of the Hon. Michael Gableman:

Gableman said the 60% figure came from a study by an outside group.

"I don't know if the number is 30%, 60%, 80%, or 90%," he said, before adding, "I'm unaware of any study that contradicts those numbers."

Gableman v. Numbers

And here's hoping against hope that the Milwaukee Journal-Sentinel is not going to persist in reporting this garbled nonsense as uncritically as it did during last year's election campaign.

Widespread voter fraud uncovered in Ohio

Devastating AP report can now reveal:

A Connecticut man in town visiting his sister cast a ballot on Oct. 4 but later told officials what he had done.

Didn't we also hear quite a lot about this last fall?

Who cares.

AM radio yeller Belling refuses to "shill" for Randy Koschnick.

h/t Jim Bouman.

Gableman drives a judicial Fiat

Recently minted Wisconsin Supreme Court Justice Michael Gableman this morning throws down his inaugural written opinion for the court, a partly concurring, partly dissenting contribution to a decision called Plastics Engineering Co. v. Liberty Mutual* ("Plenco").

Plenco is not a case that came up through the Wisconsin State courts. Rather, it's a federal asbestos injury/insurance lawsuit and the reason the Wisconsin Supreme Court was asked to address it is because the United States Court of Appeals for the Seventh Circuit in Chicago requested clarification of certain generally applicable questions of Wisconsin law that might have a bearing on the federal courts' eventual disposition in Plenco.

In other words, the federal Seventh Circuit is not going to unilaterally forge ahead with its own potentially unique interpretations of Wisconsin law that is currently unclear which may affect not only the specific Plenco controversy but also future Wisconsin litigation just in case the Wisconsin courts would have decided those questions of State (as opposed to federal) law differently.

Therefore, the Seventh Circuit "certified" to the Wisconsin Supreme Court three broad questions in insurance law.

As Chief Justice Shirley Abrahamson correctly emphasizes as a threshold matter in her own concurring opinion, Wisconsin has a separate statute (§ 821.01) dealing with the Supreme Court's function under such circumstances.

That is, it is not to decide the merits of the particular case (i.e., find in favor of one or the other parties), but rather clarify Wisconsin law generally so as the federal court itself might decide the merits of the dispute before it, consistent with those broader clarifications.

A danger in determining the particular merits of Plenco, the Chief Justice suggests, is that if and when one of the parties ultimately loses in federal court, it can come back into a Wisconsin jurisdiction with a readymade Supreme Court decision in hand, a circumstance that is inconsistent with — if not contrary to — § 821.01.

As the C.J. observes:

Because the majority tries so hard to limit its opinion to the language of the insurance policies at issue and the particularized facts of the instant case, I am concerned that the majority opinion has not responded to the certified questions of law but has instead decided the merits of the instant case.

Perhaps eager to demonstrate his repeatedly advertised commitment to the "plain language of the law," Gableman, laboring in solitary dissent, goes even further, for all intents and purposes actually finding in favor of the insurance company, Liberty Mutual (surprise).

Unfortunately, he's apparently disregarded the plain language of
§ 821.01 (he never once mentions it) which is, somewhat ironically, a legislative directive intended to limit the role of the State courts, such limited role being yet another of Gableman's campaign planks.

To be sure, Chief Justice Abrahamson's approach is considerably more in accord with so-called conservative judicial principles (more specifically, "judicial restraint"). On the other hand, should the C.J.'s stated concerns come to fruition back home again in Wisconsin, Justice Gableman's lone dissent will likely be of little avail.

* 2009 WI 13 (.pdf; 55 pgs.) [.html version]

T. Erdelyi is 57

The last surviving (original) Ramone.

We're A Happy Family
Teenage Lobotomy (Live)

Saint Rush of Limbaugh

Cherished GOP sage and tutor.

Pretty sad. Party of Lincoln and all that. Bend over, indeed.

And a groveling House Repub actually apologizes to Limbaugh.

Haha.

Poor Charlie Sykes

He's so sad and disappointed that Wisconsin Manufacturers & Commerce won't be on hand to provide its trademark corrosive influence on this spring's Supreme Court election (or so it claims).

Not to worry, Charlie Sykes will pick up the slack.

See also: Koschnick reversed on traffic citations
And: Get Back to Me in April
And Xoff: Pardon my cynicism

Gableman opinion watch

None yet (do check out the amusing comments. I may not be the sharpest blogger in the drawer, but my commenters are the best).

And chalk up one more opinion each to Justices Crooks and Bradley.

Obama addresses America's enemies

Yesterday, it was radical Islamists in the Muslim world and this afternoon, conservative Republicans in the Capitol building.

Murphy can't help thinking

Milwaukee Magazine's Bruce Murphy of "Murphy's Law" today notes that he "can’t help thinking the [baby mama] issue has been misunderstood in several important respects, including ..."

And I can't help laughing out loud that he's seemingly claiming those "several important respects" as his very own. There were simply too many blogs, observes Murphy; he can't possibly mention them all.

But he apparently finds no such difficulty in mentioning the ones who made a complete and utter hash of those "important respects."

To be continued ...

Good to know

My State representative is a "total waste of space" (but yours might be a "mean-spirited little twerp" unable to "keep his pants zipped up around the staff"). Quite the informative magazine article that is!

Predator watch

Speaking of Michael Gableman, Richard A. Brown is still in custody.

As early as November 13, 2007, Gableman described a 2005 decision of the Wisconsin Supreme Court as "resulting in the release of the defendant into Milwaukee County." Today is January 27, 2009.

Richard A. Brown is not even in custody in Milwaukee County.

Michael Gableman is currently under investigation with the Wisconsin Judicial Commission for violating a Supreme Court ethics rule by misleading voters during his non-partisan political campaign.

For one reason or another, the elements of that investigation do not include Gableman's misleading observations about Richard A. Brown.

Gableman's first opinion due this week?

Not including those in per curiam attorney discipline cases, the Wisconsin Supreme Court has issued seven written decisions (comprising nine opinions) since Michael Gableman assumed its far-right chair* at the beginning of August.

Chief Justice Abrahamson has written three, Justices Crooks and Bradley two each, and Justices Roggensack and Ziegler one apiece.

The court has one decision set for release tomorrow and two more scheduled for Thursday. Watch this space. Or this one.

* From the public gallery's perspective, of course.

Sykes: Free to be me and me

I'm told that exurban medium wave radio shouter Charlie Sykes is quite the principled proponent of free speech.

For example, he'll valiantly defend the substitution of a Nazi Swastika for the Star of David on a "parody" bumper sticker against the legitimate concerns of a local ecumenical group.

But when it comes to the Brew City Brawler pointing out Sykes's comical double standards, meh, not so much.

'Pat never did correct that blunder'

When does he ever? Entertaining, but for all the wrong reasons. When Patrick McIlheran begins a sentence* with "As Dad29 points out," you know he's achieved yet another credibility meltdown.

* In a paragraph that starts with "James T. Harris says ..."

WARNING: Some comments may contain a salty vernacular.

Bearing false witness still an abomination

In the eyes of a federal district court in Illinois.

Yet a less-than-sweet savor in the nostrils of James Dobson.

Don't tell them you're a creationist!

Candidate for the MPS District 4 school board seat Michael Mathias kibbutzes with the Milwaukee Journal-Sentinel editorial board today.

Do check out MM's smoove campaign website right here.

Sykes's pandering hypocrisy, again

So local medium wave radio squawker Charlie Sykes is now storming his troopers into yet another dither against District I Court of Appeals Judge Joan F. Kessler over a ruling she and her colleagues made in 2007 that was reversed by the State Supreme Court last June.

The case concerned the admissibility at trial of evidence obtained through a surreptitious recording, the purely legal question being whether the recording constituted "oral communication" for the purposes of Wisconsin's Electronic Surveillance Control Law, which embodies a number of principles related to the right to privacy.

What Charlie Sykes doesn't tell you is that the defendant's initial motion to suppress the evidence so obtained was granted by the trial court judge, who subsequently reversed his own self after prosecutors refined their arguments in further motions.

The latter reversal by the trial court judge of his own original disposition was overturned by the District I Court of Appeals. It in turn was reversed by the Supreme Court, all of which might give even the casual observer some remote inkling of the highly technical, contentious nature of the fundamental legal questions at issue.

But I'd wager that Sykes & Co. would likely prefer not to draw any attention to the following illuminating tidbit from Judge Kessler's opinion, which appears toward the end of its fairly exhaustive 32-page analysis:

Consequently, we agree with the trial court's original conclusion* that [the defendant] had an objectively reasonable expectation that his communication with [the victim] would not be intercepted.

I wonder why that is.

Could it be because the trial court judge was Michael B. Brennan, a prominent member of the Federalist Society and who, along with Sykes himself, has been a harsh critic** of "activist liberal judges"?

(The June '08 incarnation of the Wisconsin Supreme Court included both Chief Justice Shirley S. Abrahamson and perennial Sykes target-of-absurdist-fallacies Justice Louis B. Butler, by the way.)

Unfortunately, the underlying facts of this case revolve around the unquestionably reprehensible behavior of a public school bus driver toward a special-needs child. And the bus driver eventually pleaded guilty to felony (i.e., prison-eligible) child abuse, so the admissibility of the contested evidence at trial became a moot question anyway.

Judge Brennan (since returned to private practice) pronounced on the defendant all of six months in the Milwaukee County House of Correction and a few years of probation. A prison sentence was imposed but stayed, pending the defendant's satisfactory performance on extended supervision in the community.

As Charlie Sykes and his fellow travelers among the politically conservative intelligentsia [sic] will eagerly tell you, the particular personal circumstances of the parties should never be an issue, only the "plain language of the law," right? Uh huh. Sure thing.

Except, of course, when those circumstances conveniently lend themselves to fomenting cheap manufactured outrage among one's hysterically emotive fan base — that is, the ones who elect appellate judges without having the slightest clue as to what the job entails.

And why is there no commensurate antidote to Charlie Sykes's 50,000-watt opéra bouffe in this fine city? It certainly deserves one.

* Motion hearing, 09-03-2003, Branch 15.
** Compare Judge Brennan's considerably more thoughtful evaluations with Charlie Sykes & followers' invective-laden hyperventilating.

eta: More from Super Id.

NYT: Now with 75% less wrong

This is William Kristol's last column.

Clarence Thomas slept through it

Behold the Fullscreen Gigapan Inaugural Viewer.

Well, that settles that, then

How would I like it, they ask, were the [public] school's morals brought to my kids by Vishnu? I wouldn’t.

— Patrick McIlheran

Earlier: Dear David Haynes

Shorter Koschnick

Wisconsin Chief Justice Shirley S. Abrahamson authored or joined three thousand four hundred and ninety-seven superb, thoughtful, and unassailably reasoned opinions of the State Supreme Court.

Candidate is troubled by the other three.

Plaisted rights

An insightful and valuable and damn nigh definitive contribution from the learned counsel. Money quote (and there are several others):

Wall and the three appeals court judges involved are prime examples of the kind of fine legal and (more importantly) judicial talent that you will find more often than not on the bench in Milwaukee County. Although they reach different conclusions under different analyses, all four are toiling in good faith as they struggle to strike the difficult balance between understanding and accommodating without excusing the often-taboo impact of race and the treatment of the underclass in criminal courts.

A resounding chorus of Amens to that.

The Baby Mama Club

Pope recommunicates holocaust denier

"I believe there were no gas chambers," sez Catholic bishop.

Good news for Mahmoud Ahmadinejad and David Duke, also.

Procedural justice

Still more baby mama perspectives, this time from Marquette University professor of law Michael O'Hear (one of whose scholarly specialities is sentencing law and policy). Very interesting stuff.

Of course, had the court of appeals imported into its decision the social sciences literature that Prof. O'Hear mentions, some observers would have thrown a hairy fit on those grounds alone.

Personally, I don't have a problem with the courts doing that — so long as it's empirically sound — and neither did the framers of the federal sentencing guidelines, as Prof. O'Hear demonstrates.

The body of law should, and does, evolve. I'm amused by those who deride the strawman of "living Constitution proponents." The text of the Constitution may not change, but when it finds application in a changing and (hopefully) maturing society, those results may vary.

Not because the Constitution has changed, but because we have.

Nichols doesn't get it either

The Journal-Sentinel's Mike Nichols on the baby mama kerfuffle:

Judge Wall didn't intend to be offensive, [appeals court judges] Kessler and Curley opined. But, they claim, "a reasonable person" would conclude he "was improperly considering the defendant's race." They focused on a couple sentences out of thousands and suggested Wall didn't mean to be a racist — but is.

That's a pretty outrageous and irresponsible accusation against Judge Kessler and Judge Curley. They most certainly and unequivocally did not suggest that Judge Wall is a racist.

Nor did they claim merely that a reasonable observer might find an improper consideration as a basis for the defendant's sentence.

They found that a reasonable person in the position of the defendant could have. That is a fundamental distinction. I would submit that had they not taken the defendant's own perceptions into consideration, they very likely would have affirmed his sentence.

Nichols, like many others, needs to go back and reread the court of appeals decision more carefully before making such pronouncements.

Interestingly, Nichols himself goes on to imply that another well known judge does harbor racist inclinations:

Our attorney general should appeal this decision to the Supreme Court. Unfortunately, there are some bench warmers there, too — including former Burnett County Circuit Judge Michael Gableman, who not long ago ran a Willie Horton-style ad that really was offensive. Exoneration from the likes of people like Gableman probably won't mean much to Joe Wall.

As offensive and insulting and pandering as Gableman's teevee ad was — and it was, very much so — I strongly disagree that it serves as an indicator of racism on the part of Gableman personally.

Although it was almost undeniably designed to appeal to and exploit racism for votes, what it was was the sleaziest of gutter politicking and for that, no racial component is necessarily required.

Otherside of the Game

I saw Erykah Badu at a small club in Toronto in about 1997. Her band was bass, drums, and Fender Rhodes, that's it. Fabulous show.

Anyway, I do believe this is a baby mama number:

Erykah Badu — Otherside of the Game

The rich are differently abled

"I wonder if he's going to have toupée some of that money back?" (That's mean — ed.)

John Thain's Top Ten

Pictured: 1940s Parchment Waste Can in the manner of John-Michel Frank, USD 1405.00

And the baby elephant in the room

Prof. Esenberg enters the baby mama fray. The elephant being, of course, the question of whether the court of appeals was correct in announcing and applying the subjective (that is, one which requires the court to put itself in the defendant's shoes) standard that it did.

Prof. Esenberg, as a self-styled proponent of "judicial restraint," would, I suspect, solve the dilemma described below by affirmatively (activist-ly?) abandoning that particular test.

To the extent that that test was announced as an arguably new rule fashioned from extra-jurisdictional principles, it would take a further ruling of the Wisconsin Supreme Court to overcome its continued application (and maybe its publication is an invitation to do so).

In which case, I might be inclined to argue that the Supreme Court would need to address — and perhaps even subsequently discard — some very fundamental due process guarantees.

I wish the court of appeals had gone into more substantive detail on those questions, just as I wish that the dissent could have been more forceful in condemning what it may have perceived as the fabrication and/or assembly of "new law" rather than simply ignoring it.

I should mention quickly that I had set out only to clarify the court of appeals decision, not so much to defend it, but the more I think about it the more defensible it becomes (especially now that I've got the entire Milwaukee Journal-Sentinel editorial board on my side).*

In any event, it's a fascinating, worthwhile discussion and one that raises a wide range of both legal and local public policy concerns (which is not to suggest that those are always separable, by the way).

* McIlheran too? That's downright frightening.

eta: Also posted at Prof. Esenberg's own blog, complete with discussion well underway (and featuring several of the most thoughtful blog commenters in the business).**

** Scratch that, as I just left a comment, thereby lowering the collective IQ by a good 20 points.

A baby mama postscript

The erudite David Ziemer in the Wisconsin Law Journal offers:

A divided panel of the Wisconsin Court of Appeals recently vacated a sentence based on comments by the white sentencing judge that the court found could be construed as exhibiting racial bias against the black defendant.

I will admit that the statements could be construed in this way.

And according to the standard of review applied by the court of appeals, that's about as much as it takes.

Also this morning, the JSOnline links to something called the Badger Blogger, which it describes as "opposite" to this one. I'm not sure what that's supposed to mean, but it's certainly opposite in the sense of failing to address the central question(s) presented in the appeal.

What you will find there is vitriol and personal attacks against the two-judge majority functionally identical to that available at the online dwellings of suburban AM radio shouter Charlie Sykes.

A letter from a Mequon attorney describes the opinion as "defaming" the sentencing judge, Joseph Wall. With all due respect to counsel, this, too, misses the point, which is the defendant's perceptions.

Mr. Wall is by every account among the cream of the legal profession and absolutely nothing in this opinion diminishes that estimation.

Still more evidence of Mr. Wall's professional and personal integrity can be found in this superb opinion piece from several years ago.

At this Badger Blogger, the dissenting opinion of Judge Kitty Brennan is praised — without argument or even explanation — yet the dissent completely ignores the standard of review applied by the majority.

That is, the dissent claims that the defendant failed to meet his burden of proof without even mentioning the standard against which the majority measured that burden. That's very strange.

Judge Brennan goes to some lengths to describe why she fails to discern a racial subtext, but not a joule of energy is expended on the question of whether the African-American defendant — the one with the constitutional right to due process — may reasonably have done so, which was the threshold question presented to the court.

The dissent puts forth a number of other odd observations, including the fact that the sentencing court never referred to the male defendant as a "baby mama." It also makes the puzzling claim that the judge's "you guys" did not include the defendant. Set theory would appear to indicate otherwise.

The dissent categorically asserts that neither comment provided any basis for the sentence imposed, which raises at least two (rhetorical, in my judgment) questions: 1) How does she know that? and 2) Why, then, did the judge deliver them to the defendant immediately prior to pronouncing the sentence?

The thrust of the dissent is that because Judge Wall satisfied all of the required considerations at sentencing — which the majority also expressly acknowledges — and because the author of the dissent personally discovers no racial subtext to the judge's remarks, then the sentence must stand.

Not once is the possibility of the defendant having reasonably understood things differently even engaged.

In short, it's not the most powerful objection on record, to say the least, although it might not unfairly be said to include a tacit admission that Judge Wall's remarks were less than well advised.

Milwaukeeans (and coddled suburbanites like Charlie Sykes and his unquestioning followers) ignore at their peril the resentment in the black community for the justice system in their county. Whether the resentment is warranted and to what degree are, of course, separate questions. But it's out there; ask any criminal defense attorney.

Among the unstated premises in the State v. Harris opinion, it seems to me, is that the sentencing judge's commentary wasn't creating an impression with the defendant, it was reinforcing one.

One final reiteration: it's the defendant's perceptions of the sentencing pronouncements that are at issue here, not what Judge Wall meant by them. I believe we may confidently treat as axiomatic that his intentions were beyond reproach and, as I said, nothing in the court of appeals' opinion undermines that assumption.

Quite the opposite, in fact. It's supported.

And let's not forget that in Wisconsin, appeals court judges are elected, so in some sense they were put on the bench to do the will of the people. And the will of the people is better served when, on a close and subjective question such as the one presented here, the alleged error is committed on the side of caution, and this outcome was clearly informed by and reflective of that caution.

On that note, it's very important to remember that this was a sentencing, not a conviction, and the demonstrated infirmity of the vacated penalty will take all of 45 minutes to rectify (unless the State appeals and the Supreme Court takes up the case, which is possible).

It's also possible that Harris will end up with the same or even a more severe sentence. On that account, it's a roll of the bones. Presumably the challenged sentence was greater than anticipated, otherwise his attorney would likely have advised him to have taken it and ran.

Finally, David Ziemer raises a compelling point:

When an identical [sentencing hearing] transcript shows reversible error in one case, but an appropriate exercise of discretion in another, depending solely on the race of the defendant, the law is standing on shaky footing.

It's a dilemma, but for what it's worth, I'm pretty much convinced the court of appeals did the prudent thing under the circumstances.

Gran Travesty

Oscar, you gotta be kidding. Digitized Brad Pitt but not Clint Eastwood? Gimme a break. Brad Pitt deserved a statue for True Romance ("Floyd"), but he sleepwalked through that Button thing.

I'll root for Penélope Cruz instead.

Baby-mama-drama drama babies

Speaking of Milwaukee's obscure non-MSM pirate radio station 620 WTMJ, one of its other in-house vocalizers, Jeff Wagner, is quite upset with yesterday's court of appeals ruling in State v. Harris.

Inveighs Wagner:

For [Judge Joseph] Wall to have his motives and remarks impugned by Joan Kessler and Pat Curley is like Muhammad Ali having his boxing technique criticized by Doink the Clown.

Evidently Wagner, blinded by the impulse to unseat "Democrat activist" judges, didn't read the opinion too closely, and overlooked the standard of review the appeals courts apply in these cases (the latter is especially strange, as Wagner reproduced it at his own blog).

Or perhaps the former practitioner has forgotten what a disjunctive clause is. The first question presented to the appeals court, which elements are derived from Wisconsin Supreme Court case law, was:

Did the trial court's comments suggest to a reasonable observer or a reasonable person in the position of the defendant that the court was improperly considering Harris's race?

Boldface added. In other words, it doesn't matter what Jeff Wagner thinks, as reasonable an observer as he might believe himself to be.

What controls are the defendant's — an African-American man, in this case — perceptions. And the trouble with Judge Wall's extended colloquy at sentencing is that he was not only referring specifically to the defendant and the defendant's girlfriend in particular, he was typecasting both of them as members of classes of persons:

THE [TRIAL] COURT: Where do you guys find these women, really, seriously. I’d say about every fourth man who comes in here unemployed, no education, is with a woman who is working full-time, going to school. Where do you find these women? Is there a club?

(Not every fourth man who presents himself to be sentenced after having admitted guilt — as was the case with this defendant — it should be noted. Just every fourth man haled into court for whatever reason, some of which are relatively flimsy to begin with.)

Furthermore, the appeals court went out of its way to affirmatively exonerate Judge Wall from any intentional impropriety.

Once again, that doesn't matter either. And Wagner argues that Judge (now-Assistant United States Attorney) Wall is extremely bright. Unquestionably. Except that, too, is entirely irrelevant.

Where other "guys" (plural) find "these women" (plural) is of no consequence* to the penalty a particular defendant faces. This defendant reasonably perceived that his penalty was affected by the judge's apparent typecasting, and the court of appeals agreed.

It's hardly such an outrageous opinion as Wagner purports to think. It's the result of smart and effective lawyering, is what it is. But without perpetual outrage, there would be no conservative radio.

* Antecedence, more accurately.

eta: So predictably, Charlie Sykes boards the bandwagon. :yawn:

Local wingers appalled at poor manners

The Brawler was deeply amused that Patrick McIlheran was shocked — shocked! — that a crowd viewing the inauguration at Uihlein Hall booed George W. Bush and Dick Cheney when they appeared on the TV screen.

Milwaukee's crybaby right

There was something on the blog feeds this morning featuring Charlie Sykes blathering petulantly about the "mainstream media." What the hell is he, unregulated broadcasting from a pirate ship?

Johnny Cash — Cry, Cry, Cry

Baby mama's in the club

Today's decision of the WI District I Court of Appeals in State v. Harris (.pdf; 22 pgs.) is guaranteed to provoke a lot of discussion.*

Two judges found overtones of racial discrimination — along with sarcastic and demeaning ones — at the defendant's sentencing hearing, while the third (dissenting) discovered enough substance elsewhere in the proceedings to determine that the "baby mama" references were the product of "frustration," relatively harmless, and not enough to constitute abuse of discretion by the sentencing court.

The dissent also marshals Tina Fey in defense of the sentencing judge. Harris's sentence on cocaine-related offenses is vacated, but the appeals court ordered that he be sentenced one more time.

Better safe than sorry, I reckon.

eta:
* As predicted, but from a less likely source: the sentencing judge.
And, as of early afternoon, top of the page at JSOnline.com. Heck, I shoulda been a newspaper editor.

Getting them in the right order

Linguist Benjamin Zimmer's take on Chief Justice John Roberts's garbled textualism. The bafflingly popular Ann Althouse, meanwhile, can't even get the mistakes right. C.J. Roberts said, "the Office of President to the United States," which was the weirdest flub of all.

I'm reminded of this:

Alan Semen: Sir Edwin, which has been for you the most demanding of the great Shakespearean tragic heroes that you've played?

Sir Edwin: Well, of course this is always a difficult one, but I think the answer must be Hamlet.

AS: Which you played at Stratford in 1963.

SE: That's right, yes, I found the role a very taxing one. I mean, er, Hamlet has eight thousand two hundred and sixty-two words, you see.

AS: Really.

SE: Oh yes. Othello's a bugger too, mind you — especially the cleaning up afterwards, but he has nine hundred and forty-one words less than Hamlet.

AS: How many words did you have to say as King Lear at the Aldwitch in '52?

SE: Ah, well, I don't want you to get the impression it's just a question of the number of words ... um ... I mean, getting them in the right order is just as important. Old Peter Hall used to say to me, "They're all there Eddie, now we've got to get them in the right order."

AS: Sir Edwin, get stuffed.

SE: I've enjoyed it.

Great Actors.

Student paper disbars WI lawyer

Via the UW-Madison's Badger Herald:

Former attorney John Basting started the group in late 2007 and said it will be examining materials and ads released by the candidates to make sure they comply with judicial code.*

It's Tom Basting, Sr., and I'm reasonably certain he remains a member in good standing of the State Bar of Wisconsin, as he's currently its past president and sits on the executive committee.

Speaking of the State Bar, David Ziemer is displeased with the recently relaxed rules for interlopers (and I can't say I blame him).

* They make him sound like a building inspector.

I give you one simple job to do

"... that I will execute the Office of President to the United States faithfully." — The Chief Justice reads the Constitution

Makes you wonder how often that happens, don't it.

Milwaukee North Shore Inaugural Ball

Hesitant as I am to convince anyone to peel off from the venerable Drinking Liberally festivities at the Sugar Maple in Bay View, there's at least one other sublime bacchanalia scheduled in town:

Bradley’s Nightclub — 4740 W. Bradley Rd.
Doors open at 6:00.
Music, food, and other surprises. Cash bar available.
$17 at the door, proceeds to the Second Harvest food bank.

With your gracious host, Mr. Keith R. Schmitz.

There will be a raucous set at roughly 8-ish p.m. performed by:

Mike Plaisted and The Change (We Can Believe In)

feat. Himself — guitar / vocals
Ron White — drums, percussion
Your humble scribe — bass guitar

"Trust us, we're professionals."

eta: Thank you, Aretha, for blowing Rick Warren off the stage.

Some surprising apathy

According to a poll at the Milwaukee Journal-Sentinel's online home, 54% of respondents plan to "ignore" today's presidential inauguration.

Wow. I understand internets polls are by definition pretty unscientific but still, it's the result of more than 6,500 replies (at the moment).

I don't know what that says about the JSOnline's readership, or how many of those 3,500 people can't stand Barack Obama or can't stand politics or the presidency in general — or what — but it's remarkable.