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.


Anonymous said...

Unless you take that picture down, I won't be able to read the posting. Please, make it stop staring at me.

Anonymous said...

There's no very clear sense, looking at Suhr, of a student who just set out to look at a judge's reasoning and happened to discover an arrogant activist. It looks far more like a confirmed partisan trawling the data for support, not understanding -- the aim being to pin the scarlet 'A' on Butler.

And, you know, I wish I had said so earlier.

capper said...

My question, my good barrister, is did you come up with the line "Leave it to Cleaver" intentionally, or was it a mere subconscious referral to the fact that young Mr. Suhr resembles Eddie Haskell, both in appearance, and in the way he sucks up to his professor?

illusory tenant said...

See? Anon is quaking with fear already.

Daniel Suhr said...

IT, you'll forgive me if I respond to all three of your posts concerning my second memo all in one comment. I will simply say that the verb I used was "cited." And that is entirely accurate: the Ohio and Vermont Supreme Courts "cited" the Wisconsin Supreme Court's decision when making their own. They may not have quoted from it extensively, but I did not say they quoted from it extensively. I said they cited it. And that they did.
I also stand by my statement that the impact of Butler's opinions have been to the detriment of the "safety, prosperity, and health" of Wisconsin. Those three words were chosen particularly: his opinions have drawn criticism from the law enforcement, business, and medical community for making it harder for them to do their jobs here in Wisconsin. But more on that next Monday.
And yes, I am utterly spoiled to have free all-you-can-use Westlaw and Lexis. It is a wonderful tool and I'm glad I can use it.

illusory tenant said...

Break out your Black's, my friend. I have already granted you the most innocuous reading of "cite" that our Scripture allows:

vb. 2. To refer to or adduce as precedent or authority. — 7th ed., p. 237.

I occasionally enjoy a nice little quibble myself, but I'm afraid this one will get you nowhere.

Anyway, I have given a fairly complete explanation as to why your use of these three cases is inappropriate to both your premises and your conclusions. That is the point; I am hardly objecting to the fact that these cases "mentioned" Knapp.

Quibbling over the meaning of "cite," under the circumstances, is a red herring.

Anonymous said...

I'm interested in where he's getting his cases. It seems like a pretty clear non-academic use of his lexis/westlaw accounts. The ethical guidelines for academic use would not cover the work he's doing.