January 31, 2008

Where are all the brain fossils?

PZ Myers, a developmental biologist from Minnesota and proprietor of the famous blog Pharyngula, has announced for Jesus and converted to Christianity.

Not really, but he did turn up on a local Christian radio station today. And, to great comic effect, so did a man by the name of Geoffrey Simmons, one of the most idiotic creationists in recent memory.

Simmons is another of these "fellows" with the Discovery Institute, a Seattle think tank devoted to propagandizing on behalf of "intelligent design," the latest ongoing and spectacular failure at Reclaiming Science for Christ.™ Simmons has written a couple of books, one comparing Darwin's 19th century knowledge of physiology with 21st century medicine (Simmons is an M.D. and Darwin predictably doesn't fare very well) and another purporting to discuss in depth the fossil record.

Simmons's publisher, Harvest House Books, says it's committed to providing "products that affirm Biblical values" and "proclaim Jesus Christ as the answer to every human need." If Simmons ever needed Jesus, it was this afternoon. Some relevant facts would have been helpful also. Nay, verily, even just one. Sadly, it was not to be.

Apparently PZ was invited to impart on the topic of "evidence for evolution versus evidence for intelligent design" (read: tons v. none). But things began to go awry 90 minutes before airtime when PZ received a message from the station informing him that Simmons agreed to participate, but only on the patently ridiculous question, "Are Darwin's theories fact or faith issues?"

Despite immediately sensing shenanigans, PZ soldiered on, appeared at the appointed time, and proceeded to casually and affably pick clean the hapless bones of Dr. Simmons. According to the show's hosts, the audio will be available tomorrow at its website, KKMS.com. It's worth a listen.

During the "debate," Simmons made a number of false claims about the fossil record, an area in which, the radio hosts informed us, Simmons is "expert." Simmons, for example, declared there are no pre-whale fossils demonstrating some of the physical features characteristic of modern whales. The truth is, the evolutionary history of whales has involved some of the most revelatory endeavors in paleontology of late, owing to the discovery of a number of remarkable confirmations of evolution throughout the Indian Ocean.

PZ rattled off a number of such examples, none of which Simmons had even heard of, but said he'd once read an article in Scientific American, or something. While sleeping at a Holiday Inn, I bet.

One of the funnier exchanges occurred during a comparison of human and chimpanzee brains. Finding himself in uncomfortable agreement with PZ on the numerable close similarities, Simmons was moved to suddenly demur when PZ observed that the only substantive difference between the two organs was their relative volumes. Simmons then began to declaim on the distinctions, offering as evidence — wait for it — an anecdote about being able to play both concertos and "rock 'n' roll songs" on the piano.

Take that, godless evilutionist!

But the grandest insight came from another Discovery Institute drone, commenting at Uncommon Descent, the blog of William Dembski, one of ID's leading dim bulbs. The commenter, skeptical of PZ's claim that much is known about brain evolution, posed the apparently rhetorical question, "Does anyone know of any brain fossils?" This is what passes for evidence of intelligent design, incidentally. Life must have been designed because there are no brain fossils. While the Designer may have been intelligent, its disciples, not so much.

Never mind that the brain is composed of soft tissue, and is rather unlikely to fossilize. And never mind that the fossil record is only one of any number of evidences for evolution. Generally, it's bones that fossilize, so if a well preserved human brain is ever discovered, it's guaranteed to be that of a creationist.

WMC to restrict WJCIC speech restrictions

In a move that will likely be portrayed as a sop to its several critics, John B. Torinus, Jr. has been added to the State Bar's campaign watchdog committee, the WJCIC. Torinus is a board member of Wisconsin Manufacturers & Commerce (WMC), which last year directed more than $2 million toward the successful candidacy of Wisconsin Supreme Court Justice Annette Kingsland Ziegler.

Ziegler herself recently forfeited a $17,000 settlement in fines and fees pursuant to ethical violations while a judge in Washington County. Ziegler's case remains before her current colleagues, who are considering another panel of Wisconsin judges' recommendation that Justice Ziegler be publicly reprimanded for her ethical lapses.

A number of WMC's fellow travelers, whose common goal is apparently to replace Justice Louis Butler with the virtually unknown Burnett County Judge Michael Gableman, have expressed reservations about the WJCIC's motives and potential effects.

Gableman is being touted in several quarters as the conservative alternative to Butler, who has been breathlessly depicted as a detriment to the "safety, prosperity, and health of the citizens of many states, especially Wisconsin." For his own part, Gableman describes Butler as a "liberal" and an "activist" who "legislates from the bench" based on his "personal sympathies or feelings."

In fact, Gableman attempted to accuse Justice Butler of relying on "The Wizard of Oz" during an online debate Tuesday. Fortunately for Gableman, he has a number of surrogates gathering on the horizon more than eager to do the heavy lifting on his behalf.

A WMC Matrix Unbound?

Meanwhile, a quartet of downtown Federalist Society operatives recently criticized the WJCIC on the op-ed pages of the Milwaukee Journal-Sentinel, decrying the committee's activities as "inappropriate," and urging the candidates not to sign the committee's proffered advertising agreement, which reflects existing Supreme Court Rules on judicial electioneering.

While Butler has since signed the agreement, Gableman said Tuesday he is "in discussions" with the committee.

Rick Esenberg, a newly minted professor of law at Marquette University, has criticized the WJCIC extensively at his widely influential blog, deriding it as "truth police," and suggested that the committee's interpretations of Wisconsin Supreme Court Rules may be unconstitutional according to his reading of a federal case called Duwe v. Alexander. (The one sentence in Duwe that might arguably apply to the present circumstances concerns questionnaires distributed to judicial candidates by Wisconsin Right to Life during a previous election cycle.)

Esenberg is also the author of a memo prepared for the Federalist Society entitled, "A Court Unbound?" That phrase coincidentally happens to be the same (sans the question mark, perhaps as a reply in the affirmative) as the one selected by WMC to promote its statewide series of "breakfast meetings," which kick off February 13. The 11-page memo was praised by an Esenberg research assistant as "the definitive work" on the Wisconsin Supreme Court's recent jurisprudence. [It's actually very well done and doesn't deserve ridicule on that basis, but the praise is completely over the top.]

Additionally, the WMC has produced a video presentation, also entitled "A Court Unbound," featuring Esenberg seated in a book-lined study and pronouncing on a series of philosophical issues.

The one-page .pdf announcing Torinus's addition to the WJCIC is available here. The inevitable shenanigans that will ensue between now and the April 1 election will be available here and elsewhere.

[Please visit the iT Butler/Gableman archive.]

John McCain said a bad, bad thing

The Prince of Darkness dishes some more dirt this morning, confirming John Fund's previous dishery that Senator John McCain described U.S. Supreme Court Justice Samuel Alito as "too conservative." McCain, in the meantime, has been makin' flippy floppy,* calling Alito a "magnificent choice" for the Court.

Reports Novakula:
I found what McCain could not remember: a private, informal chat with conservative Republican lawyers shortly after he announced his candidacy in April 2007. I talked to two lawyers who were present whom I have known for years and who have never misled me. One is neutral in the presidential race, and the other recently endorsed Mitt Romney. Both said they were not Fund's source, and neither knew I was talking to the other. They gave me nearly identical accounts, as follows:

"Wouldn't it be great if you get a chance to name somebody like Roberts and Alito?" one lawyer commented. McCain replied, "Well, certainly Roberts." Jaws were described as dropping. My sources cannot remember exactly what McCain said next, but their recollection is that he described Alito as too conservative.
Grow legs, story, grow legs!

All of which is a cheap excuse to revisit Robert Smigel's hilarious "Fun With Real Audio" segment from Saturday Night Live devoted to the now-Chief Justice John Roberts Senate confirmation hearings:

"I hesitate to opine ..." (QuickTime, 2:28)

* Feat. Jerry Harrison of Milwaukee, WI.

January 30, 2008

By how much can you miss a point

Über-Catholic Dad29, when he's not obsessively navel gazing over liturgical minutiae, occasionally unearths some classic material. For example this gem, delivered in elegantly scented Jesuit prose, alleged to debunk a couple of recent bestsellers, Richard Dawkins's The God Delusion and Christopher Hitchens's God is Not Great.

Via ol' Dad, Fr. Edward Oakes, S.J. (I can never see those initials without thinking of Fr. Gassalasca Jape, S.J., one of Ambrose Bierce's fictional collaborators on The Devil's Dictionary) disgorges the following:
It is ... blinkered ahistorical myopia that makes reading these books such a surreal experience. For like a “red thread” running through all their other arguments, each book has one central claim: Belief in God causes violence. The obvious corollary to this thesis is almost too absurdly risible to merit formulation, and some authors are just coy (or embarrassed) enough not to say it out loud; but others are bolder and shout it from the rooftops: If only atheism would take hold as the majority view throughout the globe, humans would lose their propensity for violence, lion would nestle beside the lamb, children would regain their long-lost happiness, swords would magically turn into plowshares, churches would empty and the resultant collapse in the market-price for incense would alone reverse global warming.
Eh, no. Neither author claims that said belief is the sole cause of violence, nor that the absence of belief would eradicate all violence. Only that belief has led to much violence, and postulates that whatever violence proceeded from belief may well have not occurred in its absence. So that leaves Oakes, S.J. with, well, appeals to Adolf Hitler and Joe Ratzinger, as it turns out. In other words, nothing.

Speaking of risible, as if on cue, the esteemed Professor John McAdams wanders cluelessly into ol' Dad's comments thread to deposit this profoundly rudimentary misunderstanding:
[Re:] The burden of proof is on the one making a claim.

Yea [verily?], but saying God exists is a claim, and saying that He does not is a claim.

Your claims don't get any special advantages.
Except Dawkins, for one, makes no such claim. Dawkins is a scientist, and scientists don't go around claiming to prove the non-existence of beings, supernatural or otherwise. In fact, throughout Dawkins's frequently uproariously funny book, he allows for the — albeit vanishingly small — possibility of "god." His point is that the evidence for it is nil and the arguments in favor of its existence are so threadbare and unconvincing, it's more than reasonable to rule out god in the meantime, for the most part.

That being the 99.99999999999999999999999999999% part.

This is generally the position of most atheists, and also why the claims are not comparable as McAdams seems to think.

Oddly enough, ol' Dad's webpage prominently displays an animated "God Bless America" graphic, which in turn features images of the destruction of the World Trade Center. If memory serves, that event was engineered and conducted by a gentleman named Mohammed Atta, who left frighteningly detailed directions as to the proper ablutions to be performed over his corpse on the occasion of his successful religious martyrdom and ensconcement at Valhalla.

Notably, he didn't ask to be buried with copies of Charles Darwin and Friedrich Nietzsche.

Note: The author denies his insolence is evidence for the existence of god, although he acknowledges the argument has been made.

A Gableman moment

One of the revelatory moments that occurred in yesterday's online debate between Justice Louis Butler and Judge Michael Gableman came after a caller, Dan from Milwaukee, asked Butler how the latter went about building the list of group and individual endorsements listed on his campaign website.

Butler, following on his reiteration that the election itself is a non-partisan affair, stated that his endorsements were collected from "across the board," including from within groups that are traditionally associated with Republicans.

Gableman, in an awkward play at carpe-ing the diem, remarked that, "I notice my opponent says he's reached out to Republicans. Does that mean he's the Democrat?" Except Butler mentioned that he'd also gathered support from groups traditionally associated with Democrats, yet that prompted no penetrating inquiry from Gableman as to whether that meant Butler is "the" Republican.

Probably because Gableman is "the" Republican.

Not only that, but during his own opening statement, Gableman had specifically appealed to the support he enjoys among Democratic sheriffs and district attorneys. Whoops!

Hopefully this isn't the sort of comically selective reasoning Gableman intends to apply at the Wisconsin Supreme Court.

[Please visit the iT Butler/Gableman archive.]

January 29, 2008

A pox on WisPolitics.com

WisPolitics.com, which touts itself as "Wisconsin's Premier Political News Service," somehow managed to crank out 20 paragraphs (short ones, granted) on this afternoon's online encounter between Justice Louis Butler and Judge Michael Gableman without once invoking the name of the young man who moderated the debate.

His name is Kyle Duerstein, a student in UWM's Journalism program, and he acquitted himself impressively well throughout the 75-minute broadcast, in addition to performing an important and innovative public service, for which I assume he received no remuneration.

Surely he at least merits a mention, by name.

Duerstein's own blog is here. Just because the selection of links on his blogroll is indicative of a disturbingly horrific propensity toward conservative politics doesn't mean he deserves to be snubbed.

UPDATE: WisPolitics has since credited young Mr. Duerstein for his exemplary performance. Now if WisPolitics will periodically add this here blog to its daily "editorial links," all will be right with The World.

Butler / Gableman call-in

UWM Journalism student Kyle Duerstein has scored a radio interview with Justice Louis Butler and Judge Michael Gableman, slated to begin this afternoon at 4:30 (that's Central Standard Time [UTC-6] for all you devoted readers at the Deutscher Bundestag).

The live broadcast will be available here, from the looks of it.

Call in and ask Judge Gableman how come he ruled to deny insurance coverage to a 14-year girl who was thrown from a vehicle and severely injured in April, 2002.

Meanwhile, Gableman has received the endorsement of our friend, the Republican Congressman and dedicated historical revisionist, Paul Ryan. Said Ryan: "Wisconsin voters can trust the Judge Gableman won’t look for loopholes for criminals to crawl through.”

Don't look at me, that's what it says at Gableman's webpage.

[Please visit the iT Butler/Gableman archive.]

January 28, 2008

Metro temperatures, IQ to plummet

Milwaukee can bid farewell to both today's balmy temperatures and its mean IQ score by Wednesday, as a bitter cold front brings sub zero weather back to the Cream City, a drop of potentially more than 50 degrees Fahrenheit.

While seasoned Metro residents can be counted on to brave the latest winter weather snap, a recently spotted marquee at The Rave advertising the Jan. 30 appearance of popular Detroit "singer" Kid Rock serves notice that the "entertainer" will concurrently wreak havoc on the Milwaukee area's overall IQ, which normally enjoys an above-average score in the 115-120 Stanford-Binet range.

Mr. Rock is expected to draw vanloads of adequately functioning brain stems from neighboring Waukesha and Racine counties, who for several hours on Wednesday will reduce Metro Milwaukee's mean IQ to dangerous, "low moron" levels.

Milwaukee previously endured a similar crisis in overall intelligence during the visit last year of Mr. Rock's fellow Michigander Ted "Motor City Madman" Nugent, also to The Rave.

"The city can generally handle these precipitous drops in IQ," said Marquette University Professor of Developmental Psychology Waldo Jeffers, "but both Nugent and Rock are also reportedly conservative Republicans, so the hazards are especially acute."

"The upside for Michigan," Jeffers added, "is that with Kid Rock out on tour and Ted Nugent living in Waco, Texas, it's looking statistically like frickin' MENSA Central over there."

Mr. Rock and entourage are scheduled to make their way along Wisconsin Ave. early Wednesday afternoon, and additional armed guards and paparazzi will be placed inside the George Webb restaurant at 16th and Wells just in case the crew decides to venture out for a few plates of waffles and a drunken punch-up.

However, by late Thursday Metro Milwaukee's IQ should be stabilized, and Prof. Jeffers said no further imminent threats are known, at least until former KISS guitarist Ace Frehley comes to town in March.

Source: The Rave.

Loophole hooey and the WJCIC

Ever since the President of the State Bar of Wisconsin, Tom Basting, formed a committee (the WJCIC) to monitor the ongoing and future election campaign between Wisconsin Supreme Court Justice Louis Butler and Burnett County Circuit Court Judge Michael Gableman, the First Amendment paranoia has been flying thick and furious.

It's plainly unconstitutional! It's an attempt to regulate speech!! zOMG teh librulz!!!!11 Et cetera, et cetera.

Never mind, apparently, that any regulation of speech is already embodied in Chapter 60 (.pdf; 38 pgs.) of the Wisconsin Supreme Court Rules. What the WJCIC has done is merely distilled from the Rules an advertising agreement which simply reminds the main players to abide by those Rules. It has also, in what seems to me a decidedly innocuous request for a mutual gesture of good faith, asked that the two principals sign and return the agreement.

Now we have Rick Esenberg of Marquette University Law School conjuring an invocation of a "Basting test" according to which, presumably, statements made during the campaign are assessed. No word yet on the actual elements of the mysterious Basting test, although a number of clues may be discerned in the popular press.

In an op-ed piece that appeared ten days ago in the Milwaukee Journal-Sentinel condemning the State Bar's "improper role," four corporate attorneys* from three of Milwaukee's largest law firms weighed in with their extrapolations upon the WJCIC agreement. (I hope it didn't take all four of them to come up with this jeremiad.)

"The pledge [sic] seeks to prevent the candidates from engaging in speech that the eight-person committee believes is false, unfair or otherwise offensive," they write.

It does? The closest thing the agreement comes to presenting the WJCIC as an adjudicator on Truth, Justice, and the American Way is that it charges itself with "reviewing" campaign literature. It presents no such standards of "belief," other than those already set forth in the Supreme Court Rules and those Rules' explanatory commentary.

None other than Esenberg himself commended the op-ed in glowing terms. Esenberg, who assiduously seeks to portray himself as above the fray — and occasionally succeeds — has lent his credentials and views of the State judiciary to Wisconsin Manufacturers & Commerce (WMC), a business group that last year devoted more than $2 million worth of issue advertising in generous service to the successful election of Justice Annette Kingsland Ziegler, the formerly ethically-challenged circuit court judge from Washington County.

In fact it was the often low quality of that campaign's discourse that prompted Mr. Basting to institute the WJCIC in the first place. Something about protecting the integrity of the judiciary and the general view of the legal profession, or some such rubbish. As if the President of the State Bar has any business seeking to insinuate himself into these concerns. The cheek and temerity of that man!

Then WMC is embarking on a February World Tour (.pdf; 4 pgs.), at which Esenberg is the featured speaker, albeit his appearance will be live via DVD, hard copies of which will be distributed to the breakfasting revellers. It's unclear whether the DVD contains only Esenberg's mini-disquisition already available here, or an expanded, unedited version. But I'm sure we'll find out sooner or later.

Meanwhile, writing in Madison's independent weekly Isthmus, columnist David Blaska describes the WJCIC as a "front group" for the State Bar (although he also calls Michael Gableman "Max," which may be a strange, possibly Freudian typo or a personal term of endearment). But does Blaska seek out the actual text of the WJCIC's advertising agreement? Of course not, he takes the four corporate attorneys at their word, quotes exclusively from their J-S op-ed number, and concludes, "Tell the Bar's committee to go pound sand." (Emphasis in original.) Relying on secondary opinions when the primary authority is just as easily available ... great work.

No wonder Charles J. Sykes is evidently a fan (for it was He).

As for the advertising agreement itself, it would be difficult to dream up anything more innocuous or less sensibility-offending.

After a series of “whereases,” the actual statements that the two electioneering principals are urged to endorse are presented in numerical bullet points. Premised as they are in the Supreme Court Rules, I can't imagine anyone objecting to any of these blinding glimpses of the bleedin' obvious, with the possible exception of number five, which reads:
I agree, based upon my personal examination of judicial advertisements, to publicly disavow advertisements that impugn the integrity of the judicial system; falsely or unfairly impugn the integrity of a candidate for the Supreme Court; or erode public trust and confidence in the independence and impartiality of the judiciary by verbally or visually attempting to lead voters to believe that a candidate will decide issues or cases in a predetermined manner.
Donning my strict constructionist hat, I notice that the First Amendment to the U.S. Constitution makes reference to "abridging the freedom of speech." And I'm therefore at a loss to explain how an agreement to "publicly disavow," which necessarily implies more speech, is construed by some as having the effect of "abridging" speech, which means 'lessen.'

Personally, I couldn't care less whether either candidate signs the advertising agreement or not. I honestly don't think it would make much of a difference anyway. But I applaud and support Tom Basting's efforts at maintaining decorum and civility in a campaign where, given the conservative stakes articulated by Esenberg and the WMC, the discourse could very well degenerate in a hurry.

In a number of instances, it already has. Curiously, those instances seem to have emanated from supporters of Michael Gableman. So it makes one wonder what speech, exactly, the WJCIC's detractors are fearful at having "abridged." Mike Plaisted has some ideas.

* A tip o' the cheesehead to the redoubtable and ubiquitous John Foust for pointing out that the apocalyptic four are also actively involved with the Milwaukee Chapter of the Federalist Society (Warning: that last link may frighten children and small animals).

[Please visit the iT Butler/Gableman archive.]

January 27, 2008

W. A. Mozart

The last person that many people would prefer to hear playing Mozart — aside from Louis Farrakhan — is the late Canadian pianist Glenn Gould.

While Gould recorded all of Mozart's 17 sonatas for solo piano, he often performed them either agonizingly slowly or else so ridiculously uptempo as to make a mockery of them, in some instances rendering them almost unrecognizable compared to the traditional interpretations of Mitsuko Uchida, Daniel Barenboim, and the rest.

In any event, here's a snippet of Gould playing and discussing the theme and variations from Mozart's Piano Sonata in A, Kv 331:

Gould plays Mozart

Notice that Gould sarcastically refers to the more widely acknowledged tempi as the "Hollywood With Strings" versions.

It's frequently lamented among music lovers that Mozart, who was born on this day in 1756 and who succumbed to rheumatic fever in 1791 at the age of 35, died too soon. Gould, on the other hand, notoriously commented that Mozart "was a bad composer who died too late rather than too early." As one of the most gifted and remarkable musicians of the 20th century, Gould could get away with those sorts of observations. Unfortunately, Gould himself was only 50 when he left us in 1982.

Since Mozart by all accounts enjoyed a good joke, here's some dude performing the third movement of the same work on a guitar:

Rondo: alla Turca

January 25, 2008

Fruit of the poisoned mind

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

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

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

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

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

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

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

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

Yer out.

Oh, by the way, I notice that Counsellor Mike Plaisted, in the course of his fine work here, links to a supposedly politically influential local conservative blogger, who opines:
Daniel Suhr of GOP3 has done a great service by analyzing all of Justice Butler’s opinions to evaluate his judicial philosophy.
Uh huh. It's a service alright.

January 24, 2008

No Person except a natural born Millionaire

The U.S. presidency is an expensive office to purchase. How expensive? Ask Mitt Romney:
[S]ome in his camp say they expect him to spend $40 million to $50 million on his effort to secure the nomination.
Of his own money. Just to get nominated.

Romney's assets are reported to be valued in the neighborhood of a quarter of a billion dollars so really, $50 million is pretty much just walking around money for Mitt. But the higher end of Mitt's camp's estimate would put paupers like John Edwards and Rudy Giuliani on federal assistance.

Here's a not unreasonable interpolation to the United States Constitution, Art. II, Sec. 1, Cl. 4:
No person ... shall ... be eligible to that Office [of the President] who shall not have attained to the net worth of thirty five million Dollars.
It's funny 'cause it's true.

h/t Washington Babylon.

Suhr takes another Knapp

Further to my post below, I had occasion to look at the case following immediately on Daniel Suhr's reference to State v. Cleaver.

As discussed previously, in his latest piece of anti-Louis Butler politicking, Suhr wonders whether (1) State v. Knapp has been "used as precedent for further decisions," and whether (2) "other courts [have] accepted or rejected the rationale and rule offered[.]"

He then presents a purported example of the foregoing from Ohio, State v. Farris (.pdf; 20 pgs.).

Of Farris, Suhr writes: "[T]he Ohio Supreme Court cited Knapp and one other state supreme court decision to hold that the Ohio Constitution provided broader pre-Miranda evidence gathering protection than the U.S. Constitution." Emphases added.

The impression Suhr is attempting to convey, clearly, is that the Ohio court relied on Knapp, or used Knapp as authority in support of its disposition. Except it didn't. The Farris court reached its conclusion independently, based on, among other things, previous holdings of the Ohio Supreme Court. But not Knapp.

The sole mention of Knapp in the entire opinion is as an aside. The Farris court simply observes, at the conclusion of its own independent analysis, that its decision happens to put Ohio in accord with Wisconsin on a particular question of law. That's it, that's all. No reliance on Knapp, and no citation to Knapp as authority.

So, as for the Ohio case of State v. Farris, the answer to Suhr's own two questions are (1) No and (2) Neither. To be sure, Knapp was not used as precedent in Farris. And Farris neither accepted nor rejected Knapp's "rationale and rule."

Which raises the question: Why in the world is Suhr using this Ohio case in support of his premise that Knapp has "been relied on by parties in Wisconsin and in other jurisdictions scores of times"?

The answer, obviously, is that Suhr has a preordained political thesis in mind, has set about gathering evidence in support of that thesis, and has few qualms about presenting as "evidence" citations to the law that, on closer inspection, in no way support his conclusion.

Additionally, there is a dissent in Farris. It's worth mentioning that while the dissenters disagree with the majority, their disagreement has nothing to do with Knapp either. Rather, their fundamental objection turns on whether the circumstances of a police confiscation of a bag of marijuana following a traffic stop should be evaluated according to the Fifth Amendment's Self-Incrimination Clause or the Fourth Amendment's Search and Seizure Clause. The dissenters don't mention Knapp at all.

Nor has Suhr any legitimate business mentioning Farris for the purpose of maligning Justice Butler. Bad form, Daniel.

January 23, 2008

Louis Butler: Menace to the Homeland

'Gaze upon my mighty visage and tremble, Oh ye Citizens of these United States.'

Daniel Suhr, Marquette law student and research assistant to Rick Esenberg, is really cranking up the hyperbole these days.

We've all had a look at Suhr's previous hijinks here, here, and here.

Now Suhr has noticed that a number of Wisconsin Supreme Court Justice Louis Butler's opinions are being put to use by lawyers not only in the Dairy State but throughout the land: "In just the two years since the decisions, they have been relied on by parties in Wisconsin and in other jurisdictions scores of times." Shocking!

It's nice to see the lawyers are doing their jobs, however, in relying on the latest cases in support of their arguments.

On its face, Suhr's most recent contribution to the conservative project of toppling Louis Butler has the appearance of an impressive effort, decorated as it is with extensive footnotes and citations to cases and defendants' briefs which themselves refer, however obliquely, to the offending Butler opinions.

For the non-lawyers out there, Lexis-Nexis and Westlaw are two remarkable electronic legal database services, which hyperlink cross-references to just about every mention of every case everywhere, from all time (I'm exaggerating only slightly). Furthermore they feature search functions whereby, for example, a researcher plugs in a case citation, and the service returns every instance where that case is mentioned, by any court, State or federal, in law reviews, etc.

I believe they even contain the complete Nancy Grace transcripts.

The databases may be partitioned; in other words, a user might search for a case only within Wisconsin, only within Delaware, or only within a certain federal circuit, or whatever. As a tuition-paying law student in good standing, Suhr has unlimited access to the complete universes of both Lexis and Westlaw, access, incidentally, that would consign many of us struggling shysters to the poorhouse after a week or two, at $12 a minute.

However, the unfortunate effect of this miracle of technology is that the conscientious lawyer must actually read the returned citations, at least to the extent of determining the context in which the cited case is mentioned, and the use to which that case was put by the citing authority.

Which returns us to the now-infamous case of State v. Knapp. I don't have time to explore every instance where Suhr found a mention of Knapp — or his other three cases — in the database. At any rate (e.g., $12 a minute), that's not my job, that's Daniel Suhr's job.

But in quickly skimming through his list of citations, one in particular caught my eye, a Wisconsin appeals court case called State v. Cleaver (.pdf; 11 pgs.).

Interested and attentive readers may recall that the holding in Knapp which provoked conservative ire was that physical evidence (i.e., the bloodstained sweatshirt) obtained as a result of the authorities' failure to issue a criminal suspect his Miranda warning was inadmissible at trial. This, the conservatives claim, is an "arrogant" departure from U.S. Supreme Court rulings that extend Fifth Amendment self-incrimination protection only to the defendant's verbal testimony.

And, as I had noted more than once in previous posts here, Knapp was distinguishable from relevant U.S. Supreme Court rulings because the authorities had intentionally withheld the Miranda warnings. And not in good faith, either.

So. Now we have Suhr putting forth Cleaver for the general proposition that the physical evidence component of Butler's holding in Knapp is wreaking havoc throughout the land. Only one problem: Cleaver doesn't involve physical evidence, but it does involve the question of intentional withholding of Miranda warnings, and that is the reason it cites to Knapp.

In short, Suhr's attempt to place Cleaver in support of his conclusions is flat wrong. Yes, Cleaver cites to Knapp, but not for the purpose of appealing to its holding concerning the non-admissibility of physical evidence. And it is true that Cleaver involved pre- and post-Mirandized statements (April 26 and April 28, respectively). Of the latter, Suhr writes: "[The Cleaver court] further suppressed statements given after [the suspect] was Mirandized as fruit of an earlier violation."

This is correct. But see: "The intentional nature of the police conduct on April 26 drives our assessment of the legality of the April 28 statement." Thus spake the Cleaver court (emphases added).

Not only that, but in one of its own footnotes, the Cleaver court further distinguishes itself from Knapp by pointing out that while Knapp was based upon a Wisconsin constitutional provision, the case under consideration, Cleaver, is based on the Fifth Amendment. [see below] Interested and attentive readers will also recall that this was the other conservative objection to Knapp: that by relying on the State constitution and not the Fifth Amendment, the Wisconsin Supreme Court had insulated its holding from federal review.

Ergo, double flat wrong. As if that wasn't enough, the Cleaver court goes on to apply to its decision the U.S. Supreme Court's reasoning in Missouri v. Seibert, one of the very cases that the conservative objectors to Knapp suggested Louis Butler should have deferred to. So make that double flat wrong plus dramatic irony.

[eta: This is incorrect. While the circuit court below's ruling was based on the Fifth Amendment, the reviewing court in Cleaver affirmed the circuit court by invoking the parallel Wisconsin constitutional provision, Art. I Sec. 8. Therefore, not double flat wrong, only single flat wrong, and thanks to Rick Esenberg for pointing this out. - iT]

But the worst is yet to come. From Suhr's "conclusions":
[Butler's opinions] will likely become more solidified as time passes, to the further detriment of the safety, prosperity, and health of the citizens of many states, especially Wisconsin.
And there you have it, faithful readers. Fear for your very lives!

Good grief. Leave it to Cleaver.

January 22, 2008

Calling Dr. Moe, Dr. Larry, Dr. Gibbs

I found this rather comical document (.pdf; 6 pgs.) via Greg Laden's blog. Laden is a biologist/anthropologist at the University of Minnesota who frequently discusses the evolution/creation "controversy." The document contains a letter and memorandum addressed to the "Florida Board of Science Education" (there is no such thing as the "Florida Board of Science Education"; it's the Florida State Board of Education).

The FSBoE is currently in the process of reviewing its science standards which is, predictably, engendering all sorts of nonsense on the part of determined creationists.

The letter and memo were composed by David C. Gibbs, III, a Florida attorney with the Christian Law Association, an outfit dedicated to providing counsel to "Christians facing legal difficulties for practicing the Biblical faith." Emphasis added — I'm not sure what that means, exactly. Likely something to do with cries of persecution.

Claiming to be concerned about "scientific accuracy," Atty. Gibbs describes evolution as a "worldview" and a "belief system," and asks that the FSBoE accord his memo "considerable weight." The letter is on Atty. Gibbs's law firm's stationery, and it suggests that a number of the State science benchmarks (curriculum requirements) may violate the First Amendment's Establishment Clause which, as Atty. Gibbs puts it, "does not permit the government to either promote or inhibit religion ... [or] to express hostility to religion."

Atty. Gibbs clearly has at least two religions in mind: evolution and Christianity. At least the latter really is a religion.

After a number of amusing demonstrations of the fact that he thinks the singular form of "species" is "specie" (it's also "species"), Atty. Gibbs reserves his greatest (and weirdest) consternation for the following statement from the proposed science standards: "Evolution is the fundamental concept underlying all biology and is supported by multiple forms of scientific evidence." That essentially prosaic observation really sets Atty. Gibbs off:
This unscientific conclusory statement, devoid of underlying evidence, moves Florida's science standards outside the realm of traditional science and enters, instead, into the discipline of philosophy as the construct for defining a worldview. A worldview addresses, not only the field of science, but the philosophical purview of how to identify the four components of reality.
Buh? The what?
The problem here is that Florida's science standards now force upon students only one of several possible interpretive worldview systems without providing any philosophical instruction as to how students may evaluate and distinguish between the various worldviews that inform and identify the four components of reality---god, life, matter and time.
You gotta love that, criticizing a completely bland statement of fact for being "devoid of underlying evidence" by suddenly introducing "god" as a "component of reality," an assertion utterly "devoid of underlying evidence," to coin a phrase. He then goes on to claim the standards portray evolution as a "faith-based belief system."

All of this, of course, is typically addlepated creationist blather. But what piqued my curiosity was Atty. Gibbs's description of himself as "Dr. Gibbs" at the outset of the memo.

According to Gibbs's bio here, he has a bachelor's degree from Jerry Falwell U. and a J.D. from Duke. Also, he was on Fox & Friends.

While lawyers have "Juris Doctor" degrees, they don't normally go around calling themselves "Doctor," at least when they don't also possess medical degrees or other academic doctorates. It's misleading, and a number of State bar associations discourage it, or even disallow it.

The Florida Bar, for example, permits the use of "Juris Doctor" on business cards and stationery, but retreats to a more circumspect position even where the term is used on other forms of advertising, which the Bar says must be evaluated for context on a case by case basis.

Atty. Gibbs's memo is beyond mere commercial advertising, however, and especially given the subject matter, evolutionary biology, whose notable practitioners do in fact hold the relevant Ph.D.s, Gibbs's employment of the honorific is highly suspect, not to mention potentially ironic: at one point, Atty. Gibbs criticizes the science benchmarks for being dishonest.

Unfortunately, this instance wouldn't be surprising in the least, since creationists generally have a habit of attempting to inflate their credentials. Consider Kent Hovind, one of the most ridiculous creationists of all time, who went about demanding to be addressed as "Dr. Hovind" for years based on a purported Ph.D. obtained from a "university" housed in a Colorado bungalow. Hovind himself is currently housed at a federal prison in South Carolina after being convicted of creatively interpreting the tax code.

Forgive me for being suspicious of just about everything creationists get themselves up to, but I'm really curious as to how Atty. Gibbs comes to pass himself off as "Dr. Gibbs" in this context.

January 21, 2008

Race and gender on MLK Day

All of the race/gender politicking among some of the candidates for president is annoying, and ludicrous.

I don't buy this race business; as far as I know, there's one "race": homo sapiens. Some of its constituents have really dark skin, some of them have really light skin. And along the continuum between each, there's every shade possible. Any line drawn perpendicular to the axis of the continuum is necessarily arbitrary and ultimately meaningless. To paraphrase Warren Beatty's character in Bulworth, 'Just everybody fuck everybody else until we're all the same color.'

So there are groups of individuals within the species that share physical characteristics dissimilar from other groups of individuals. So what? That's a function of population genetics. Obviously those genetic characteristics that are shared within a group that inhabits a geographical area separate from another group are going to propagate within that group. This has been going on for millions of years and it's about time for broader recognition of the fact.

That the law recognizes race as an identifiable characteristic is, for the most part, lamentable. On the other hand, that the law recognizes the fact that some people use fantasies based on "race" to discriminate against other people is not so lamentable. Because race is little more than a social construct issuing from fear, ignorance, and superstition and it's correct that the law should intervene on behalf of those who are discriminated against on that basis. But it's quaint and erroneous notions of race that forced the requirement of those legal protections in the first place.

By the same token and given the unfortunate history of "race relations" in this country, African Americans are right to formulate social policy based on that history. That's why Chris Rock gets to say 'nigger' and Dog the Bounty Hunter doesn't, and why a Black Caucus is understandable while a White Caucus is offensive. However, I would like to see those distinctions eventually erased as well. (Which is not to say that Chris Rock should tone it down in the meantime.)

Similar considerations may be applied to the popular ideas of gender and sexuality. There are relentlessly heterosexual people, and relentlessly homosexual people. Again, a continuum exists between both with every possible permutation along the way (many of which I don't care to contemplate). Even the physical manifestations of gender are not always clear: consider those born with ambiguous genitalia. Such are the operations of nature. Deal with it, rather than reacting with horror, loathing, and political pandering.

Also, Fred Thompson is bald and Rudy Giuliani is nearsighted, but I don't hear either struggling over the hairless, myopic vote (okay, they're both lobbying for the myopic vote, but in the slightly less literal sense of the word. They're Republicans, after all).

Now for some quality civil disobedience.

January 19, 2008

How the others must see the faker

Very clever.

h/t Sadly, No!

Joe Ratzinger's orbiter dictum

One of the silliest men on Earth, Joseph Ratzinger a.k.a. Benedict 16, is at it again, defending the Roman Catholic Church's persecution of the astronomer Galileo.

Ratzinger has raised the hackles of scientists and students in Italy for observing that the Inquisition was "reasonable and just" to have tried and convicted Galileo for heresy in the 17th century.

Now Ratzinger has cancelled his scheduled visit to Rome's La Sapienza university in the wake of protests, which are themselves a bit silly.

That the persecution of Galileo was "reasonable and just" is a thought cherry-picked from philosopher of science Paul Feyerabend's provocative "collage" of ideas, Against Method. Unfortunately Ratzinger added, "The faith does not grow from resentment and the rejection of rationality, but from its fundamental affirmation, and from being rooted in a still greater form of reason."

Talk about completely missing the point. There exists a much, much broader context here, that being the history of science, and the manner in which scientific "paradigms" have replaced one another during the course of that history. What Feyerabend was suggesting is that Aristotle, who believed that the Sun revolved around the Earth, was better at arguing than was Galileo, not that the means and ends of the Inquisition were defensible, and certainly not that faith is rooted in an even greater form of reason.

In his critique of scientific methodology, Feyerabend compared Aristotle's debating style with Galileo's and argued that even though the latter was correct about the arrangement of the solar system and the former not, Galileo's support for his discoveries was often tainted by "rhetoric, propaganda, and various epistemological tricks," whereas Aristotle's deployment of logical inference was more rigorous. In other words, Aristotle's method was more sound.

That the Inquisition was "reasonable and just" is but pure provocation: "I love to shock people," as Feyerabend put it in his autobiography. It's hardly either reasonable or just to put a man to trial on penalty of torture for challenging the teachings of some religion, although I disagree that Der Papst should be discouraged from propagating his inanities at any particular venue.

Let him speak. He occasionally comes up with some great material.

January 18, 2008

Treading on Louis Butler

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 17, 2008

God's amendments

Former Arkansas governor and Baptist preacher Mike Huckabee, whose fortunes appear to be in a downward spiral since his triumph in the Iowa GOP cauci, dispensed this little nugget of wisdom the other night:
"I believe it's a lot easier to change the Constitution than it would be to change the word of the living God. And that's what we need to do, is to amend the Constitution so it's in God's standards, rather than try to change God's standards."
I don't know about that.

Exodus 20:13

Thou shalt not kill. (King James Version)

You shall not murder. (New International Version)

Easy peasy. (Vegetarians prefer the KJV, killers in general the NIV.*)

As for Huckabee's context, I can think of few things more ridiculous than using the United States Constitution to legally define marriage and thereby denying same-sex couples the benefits of same. Have a look at the plaintiffs here, compare their situations with the character pictured above, whose first marriage lasted 55 hours, and then explain to me what a "marriage amendment" would accomplish.

h/t Lost Albatross.


eta: More principled campaigning from the Rev. Pastor Huckabee, who's currently informing South Carolinians that rival John McCain "voted to allow scientific experiments to be done on unborn children." That must be what they call liberal fascism.

h/t The Chief, who maintains a fine and frequently raucous political blog expounding on many questions both national and local.

And, still more Huckabeenian assclownery, courtesy of Paul Soglin. Surely we can at least expect a president who's read the very damn thing he's vying to uphold. Even if he's read it sideways.

January 16, 2008

Shark for the defense

My outspoken admirer Rick Esenberg has published a lengthy apologetic for what, in my opinion, is a political attack piece against Wisconsin Supreme Court Justice Louis Butler, one of the cases involved in which I discussed here.

While much of Esenberg's reaction is devoted to Mike Plaisted's riotously entertaining missive (which Plaisted's since updated to address Esenberg's concerns), he does considerately take a few moments to essentially confirm the veracity of what I wrote earlier. Then he suddenly shifts gears to charge that, "The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth."

Since Esenberg is a reasonably reflective and fair-minded fellow, I'll extend to him the presumption that he's not addressing your humble correspondent with that remark. However, one finds it hard to resist the ironic "disinformation" bait, and I left this comment beneath Esenberg's blog entry, to which I've added a few clarifications below:
Please read Suhr's characterization of Knapp again. First, he describes it as a Fourth Amendment case, but it's a Fifth Amendment case. While Knapp raised Fourth Amendment arguments in his resubmitted briefs they were not addressed.

(Incidentally, contrary to your claim that judges don't make rules, the fruit of the poisonous tree doctrine happens to be exactly that: a judge-made rule.)
As I had explained, one of the cases that informs Knapp is United States v. Patane. While there are many other decisions that conflate Fourth Amendment search and seizure doctrine with that of the Fifth Amendment's self-incrimination clause, Patane isn't one of them. Apart from Justice Thomas's initial statement of the question presented in Patane ("whether a failure to give a suspect the [Miranda] warnings ... requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements"), Thomas goes on to explicitly distinguish the circumstances of Patane as "unlike unreasonable searches under the Fourth Amendment."

And, as I said, Knapp itself was distinguishable from Patane because its Miranda failings were intentional. So, who knows whether Suhr's description of Knapp as a Fourth Amendment case was a misunderstanding, simply an extravagant typo, or what. On its face, it's a gross error, especially given the discussion contained in the very case Suhr claims Justice Butler arrogantly failed to defer to:
Then Suhr describes Knapp's result as "arrogance" and an example of a "failure to defer to the U.S. Supreme Court." In this case, there exists no such requirement to defer to SCOTUS, nor is it even clear what SCOTUS requires under the circumstances, which is what I explained, and what you appear to agree with.

Do you seriously contend that Suhr's remarks demonstrate a fair -- or even honest -- representation of this case? I certainly don't, especially when his conclusions are based on an observation that raises the question of how closely he read it, if at all. He obviously didn't attend very closely to the SCOTUS decisions to which he claims Butler "failed" to defer, yet he portrays Butler as "arrogant"? Please.
Next comes Esenberg's tasty little plum:
The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth.

I sincerely hope you're not talking about me here. But, speaking of spinning from whole cloth, how about Suhr's representation of Kohn v. Darlington Community Schools: "Justice Butler, in dissent, says he would strike the statute down for violating his expansive reading of the federal and state constitutions' equal protection clauses."

Emphasis added. Now that is a fabrication from whole cloth. Butler "says" no such thing, and in fact his analysis is based on whether the substantive changes to the repose statute rescue it from the court's prior holdings in Kallas and Funk. So if there is such an expansive reading as Suhr believes, it belongs to the 1975 and 1989 versions of the court, long before Butler appeared on the scene.
I must add a tip o' the hat to my good friend at Complete Defeasance, an experienced civil litigator, who also had a look at Kohn and reported here.

Esenberg accuses me of "shift[ing] away from what Daniel said to statements made by Charlie Sykes":
As for Charles J. Sykes, Suhr cited him as a source, not me. It's not my problem Suhr's attitudes appear to vibrate in consonance with Sykes's errors.
Moreover, I would have thought it pretty obvious why Sykes was invoked, because what we have on display here is a gaggle of conservative propagandists, not just Daniel Suhr, that are engaged in attempting to foist unwarranted and ill-informed invective against Louis Butler in the months leading to the April election. And there will be much more to come.

Finally, I just noticed that someone called "Fred" has left another comment in Esenberg's thread:
"They can do better than that." - Esenberg

From reading the original posts and the comments here I conclude they can't do better.
Perhaps Fred would like to take a shot at actually addressing what's been presented here, and elsewhere, but something tells me that such measured considerations won't be forthcoming.

According to Mr. Suhr's website, enthusiastic downloaders of his "white paper" caused a server to crash yesterday. Let's hope they read it a little more closely than Suhr has read either Knapp or Kohn (not to mention Patane and Seibert).

I would caution them, however, that a closer reading may severely undermine their political rhetoric, along with that of their vocal champions in the local media actively engaged in providing free campaign messages on behalf of Michael Gableman.

January 15, 2008

For an uproariously good time

Call Counsellor Mike Plaisted.

I like him just fine!

JANE HAMPDEN: What other blogs do you read — and do you respect — that are Milwaukee- or Wisconsin-based?

RICK ESENBERG: Although I don't think he likes me very much, there's a lawyer blogger named illusory tenant who I kinda get a kick out of.
In the unlikely event my disembodied voice was afforded the opportunity, I'd certainly return the accolade, and the generous plug.

Activist Young GOPers

Rick Esenberg approvingly directs our attention to a "white paper" produced by one of his law student/research assistants. The paper is meant to portray Wisconsin Supreme Court Justice Louis Butler as a "judicial activist," according to a set of objective indicators proffered by ... Rick Esenberg (fancy that).

The paper (.pdf; 9 pgs.), which briefs a number of Butler's written opinions and offers several handy rhetorical epithets that may well (or not so well) appear on the lips of supporters of Burnett County Circuit Court Judge Michael Gableman, includes footnoted citations to Esenberg himself, that resplendent beacon of non-partisan decorum the Wall Street Journal editorial page, and, of all people, Milwaukee right-wing radio talker Charles J. Sykes.

This is amusingly ironic because the paper's author criticizes Butler for "citations to non-legal authorities" and "moral outrage substituted for sound legal reasoning." While Sykes's magazine article (.pdf; 6 pgs., including cartoons) — "Wisconsin's Activist Court" — is referenced for a separate proposition, the radio gabber also addresses one of the cases the white paper presents as emblematic of Butler's "activism" in the Esenbergian sense.

That case is State v. Knapp (Knapp II) (.pdf; 62 pgs.), a set of opinions issued by the Wisconsin high court on July 14, 2005, but with a procedural history worth recounting here. I am not going to engage the merits of Knapp at the moment. I simply think it's helpful to provide a bit of context to a portion of this "white paper," the latest attack on Justice Butler, which I think could do with some.

State v. Knapp's direct antecedent, Knapp I (.pdf; 96 pgs.), had appeared almost exactly two years earlier (before Butler had joined the court), and its majority had reached the same conclusion as had, ultimately, Knapp II: where the arresting authorities had deliberately withheld the suspect's Miranda rights with the intent of coercing a confession, not only were statements obtained pursuant to that constitutional violation inadmissible as evidence, but also the physical evidence so obtained was similarly excluded.

Miranda rights derive from the U.S. Constitution's Fifth Amendment, which ensures, "No person ... shall be compelled in any criminal case to be a witness against himself." In general, the United States Supreme Court has been hesitant to extend that protection beyond verbal statements of the accused to physical evidence. In Knapp, a murder case, that physical evidence was a bloodstained sweatshirt.

In the wake of Knapp I, the State of Wisconsin petitioned the U.S. Supreme Court for a writ of certiorari, which the Court granted, and on June 30, 2004, vacated Knapp I and remanded it back for reconsideration in light of United States v. Patane, decided two days earlier. Also on June 28, the Court had released Missouri v. Seibert. Both Patane and Seibert addressed the admissibility of evidence obtained by authorities in the absence of Miranda warnings, and both cases figured prominently in Butler's Knapp II majority opinion.

Nevertheless, the noted and estimable jurisprude Charles J. Sykes, writing for the Wisconsin Policy Research Institute, a so-called "think tank," saw fit to declare of Butler's opinion that,
What stunned the dissenters and many court watchers, however, was the court’s decision to ignore the specific decision of the U.S. Supreme Court in the case before it.
This is a remarkable observation on at least three grounds: (1) there were two cases (2) far from ignoring either Patane or Seibert, Butler devoted nearly one-third of the majority opinion's 46 pages to an in-depth discussion of both cases — in fact, the entire opinion can fairly be said to have been informed by Patane and Seibert and (3) if anyone "ignored" either case, it was the Knapp II dissenters, Justices Wilcox, Roggensack, and Prosser, who barely mentioned them.

The dissenters preferred to base their objections on the doctrine of stare decisis;* in this case, they would not have departed from Wisconsin's habit of interpreting its own State constitutional corollary to the Fifth Amendment any differently than the U.S. Supreme Court, as the dissenters claimed the Knapp II majority had done.

The troubles with this objection, however, are also three-fold: Patane is a plurality decision; that is, but three Justices signed the lead opinion. Two others concurred only with a portion of the lead opinion and four dissented. And Siebert, issued the same day as Patane, is likewise a plurality decision, with four Justices on the lead opinion and two in separate concurrences. Furthermore, Siebert reaches conclusions of law at odds with Patane. Finally, in Knapp, the evidence showed that the authorities had deliberately withheld the Miranda warnings with the intent of coercing a confession, a feature that distinguished the case from both Patane and Siebert.

And there is considerably more to the Butler majority's analysis than the foregoing even begins to suggest. Suffice to say, the U.S. Supreme Court's guidance is not as clear as Butler's detractors would have one believe. There also inheres, in these objections, the somewhat perverse spectacle of political conservatives demanding that a State entity defer unwaveringly to a federal body. Or perhaps that is what they mean by the "Federalist Society" after all. I always suspected as much, since their mascot is a cameo of James Madison.

My point is, if it isn't obvious already, that in their zeal to denigrate Justice Butler in the months leading to the electoral challenge to his incumbency, his detractors are apt to present an overly simplified — if not misleading — account of his jurisprudence. Tarring him as an "activist judge," unmoored from context and a more fair-minded assessment of the complex circumstances of these individual cases is far more raw politicking than considered legal analysis, even when it is presented by a law student/Esenberg research assistant.

Or, for that matter, a right-wing radio squawk machine.

* Elsewhere, in a video produced for Wisconsin Manufacturers & Commerce, Rick Esenberg, echoing the facile baseball analogies of then-D.C. Circuit Judge John Roberts, claims that, "Judges apply the rules, they don't make the rules." Who or what then, one wonders, made stare decisis? Incidentally, the transparently political nature of this purportedly "educational" presentation is almost comical, and I hope to address it in more detail another time.

January 14, 2008

Give the guy some credit

Come on, this is pretty funny:
Good heavens, I grant the sincerity of the critics' views -- in fact, that's the point of the blog, to contrast their bad-faith view of my side with the fact that I'm not throwing corresponding accusations at them. — Patrick McIlheran
My question: Was it meant to be funny?

January 11, 2008

Atheist mom murders four children

[Banita Jacks] told police that they were "possessed by demons" and that they had been dead for at least four months.

Once inside [Jacks's home], marshals found religious writings on the walls, authorities said.
Shades of Andrea Yates.

Grisly details here and here.

I love kiddy porn

Cases, that is. Pornography in general is interesting, if not for its alleged merits and therapeutic benefit, then for its location at the First Amendment frontiers of protected expression. Most everyone is familiar with U.S. Supreme Court Justice Potter Stewart's famous declamation, inspired by his admitted inability to define material described as hard-core pornography: "But I know it when I see it."

One subgenre of pornography that is not protected by the First Amendment is kiddy porn, which involves real life subjects under the age of 18 (that's the federal definition).

Whenever the government moves to restrict speech or expression, its motives are subjected to what the courts call strict scrutiny. According to strict scrutiny, the onus is on the government to demonstrate a compelling interest showing why its actions may infringe against First Amendment protections.

The compelling interest in the case of kiddy porn is the protection of minors — that is, the subjects of the obscene materials — against the depredations of pornographers, and worse.

That is why First Amendment proponents beat the government in a U.S. Supreme Court case called Ashcroft v. Free Speech Coalition in 2002. Because the subjects of the material at issue were not real life children but rather computer-generated images, there were no minors to protect and, therefore, no compelling government interest.

Although Justice Clarence Thomas concurred in the Court's opinion, he noted that "persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer-generated, thereby raising a reasonable doubt as to their guilt."

This is precisely what a Washington County man attempted to do in the Wisconsin District II Court of Appeals. But that court shut him down a week ago, in State v. Van Buren (.pdf; 14 pgs.).

Van Buren was charged with (and convicted of) repeated sexual assault of an 11-year-old girl in 2004, when Van Buren was 26. His friends alerted West Bend police that something "didn't seem right" about his relationship with the girl, who later testified to authorities that Van Buren had been sexually assaulting her for more than a year.

Then a search of Van Buren's computer turned up 51,760 images alleged to contain child pornography, a selection of which were used to convict him of their possession at his jury trial. On appeal, Van Buren argued that it was insufficient for the government to simply have presented the images as evidence, it needed to prove further that the images depicted real children as opposed to computer-generated ones (an argument that apparently did not occur to him at trial).

Juries comprised of laypeople, Van Buren claimed, are incapable of determining whether such evidence depicts real children or not, given the technological sophistication available to produce the latter. He was also able to muster up a dissenting opinion from a recent federal case out of the First Circuit, remarking that, "virtual and real child pornography images are indistinguishable, and that even experts have difficulty determining what is real and what is virtual."

Indeed, the District II court found much to commend in Van Buren's proffered First Circuit case. But, unfortunately for Van Buren, it reserved its commendations for the majority opinion portion of United States v. Rodriguez-Pacheco: "We can explain our view on the issue no better than the First Circuit did."
[T]he mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court’s ruling founded on reasonable inferences derived from experience and common sense.
Mr. Van Buren was sentenced to 25 years in State prison, followed by another 20 of extended supervision, in July, 2005. The present appeal also contained claims of ineffective assistance of counsel, which the District II court also denied.

It's unknown at this time whether Van Buren will launch another ineffective assistance of counsel claim, proceeding from his placing into the hands of the District II court the very rationale and even the language upon which it supported the denial of his appeal.

January 10, 2008

Why vote Democrat

"I'm very reluctant to send it back to the trial court so we can have a nationwide cessation of all executions while the trial court finishes its work and then it goes to another appeal to the State supreme court and ultimately, well, it could take years. You wouldn't want that to happen." — Justice Antonin Scalia, expressing fear and loathing at potential further due procedural delays to state executions, 1/07/08.

Equal time for Quatzequatl

A number of skirmishes are erupting in Florida over that State's science standards, as elected local school board officials again parade their profound ignorance of biology. The State department of education is in the process of revising its approach to evolution, and the neanderthals are up in arms.

Incensed that the State standards might correctly present evolution as "the fundamental concept underlying all of biology [which] is supported in multiple forms of scientific evidence,” a unanimous gaggle of Taylor County yokels has resolved to revise the foregoing "so that evolution is presented as one of several theories as to how the universe was formed."

The State standards, according to these yokels, must be presented "through a fair and balanced approach, an approach that does not unfairly exclude other theories as to the creation of the universe."

Evolution has nothing to do with either "how the universe was formed" or "the creation of the universe." It deals with phenomena occurring after the inception of life on Earth, however that came about. Biology is the study of life; that's what the word means.

Evolution, the yokels contend, must "not [be] presented as fact, but as one of several theories." Except it is a fact. What sort of people demand that facts be presented as something other than facts? Morans, that's who. Go USA, indeed.

Unfortunately, the local press isn't faring much better. Writing in the Miami Herald this morning, a scribe reports and opines upon the shenanigans at a Taylor County school board meeting as follows:
Boca Raton physician Tom Hall warned of the legal costs incurred by a quixotic, unconstitutional attempt by the Dover, Penn., School Board to teach faith-based Intelligent Design. But a Miami paramedic warned that taking God out of the classroom has led to immorality and violence. He related the beating death last week of a toddler by a 12-year-old in Lauderhill to the teaching of evolution. An unfathomable leap in logic on one side of the divide. An understandable leap of faith on the other.
Buh? Which is which? It's hardly unfathomable that Florida will become the latest venue for litigation should these yokels prevail. It's guaranteed. And it's not understandable that teaching biology caused a baby murder. It's absolutely ridiculous.

Or was attributing the baby murder to science class an unfathomable leap in logic? If so, then I agree, insofar as it relates to any form of logic whatsoever. But that leaves the prediction of the inevitable lawsuits a "leap of faith." Hardly. Furthermore, it's neither unfathomable nor a leap of faith to predict that the creationists will lose. They always do. And rightly so, albeit generally at great expense to taxpayers. However, I'm not complaining about attorneys' fees.

The writer continues:
Some who doubted Darwin suggested a populist solution. Teach all theories of creation. Let the kids decide. As if biology were as speculative as philosophy.
Interestingly, "speculative" was amended to "subjective," after I left this comment: "'As speculative as religion,' you mean. Logic, for example, is not speculative." But philosophy isn't necessarily subjective either. Logic, which undergirds both philosophy and science, has rules that are practically laws of physics.

But I don't disagree with the writer's insinuation that a "populist" approach to teaching science is an absurdity. Whether it's "let the kids decide" or "let the elected creationist yokels decide," the outcome is identical: institutionalized ignorance. In fact, children have more sense than creationist school board members.

On the other hand, maybe it's time that the ACLU, the NCSE, and others held off being concerned about science standards in one of these outback communities, and allow the latter to go ahead and teach all "theories" of creation in their biology classes. Now that would be entertaining as all hell.