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.


Anonymous said...

"They can do better than that." - Esenberg

From reading the original posts and the comments here I conclude they couldn't have done better.

Those were my original comments, but I would like to add to them by saying, well, really I'd be writing it, but what's the difference other than the fact that by writing this (though thinking of saying it which I could but no one would hear) I am providing convincing evidence that the interior of my head is not orderly and there isn't the slightest chance that I could have done any better and in fact my head would have exploded the moment I tried.

Rick Esenberg said...

I admit - in fact I said - that I wasn't as put out by what you wrote as what Plaisted did which, with respect to his description of DuBose, was unequivocally wrong.

But here's my problem. You know that SCOTUS remanded in light of its decision in Patane refusing to exclude physical evidence. You know that SCOWIS, which had been in lockstep with SCOTUS on this question, then decided to base its decision in Art. I, sec 8. In other words, even though it appears SCOTUS requires less, we're going to require more.

Now, you can argue with Daniel and say that SCOWIS can and ought to do that. As a statement of the law, they can do it, although there is a vigorous argument about whether they ought to.

I know that Daniel understands the various positions if no other reason than that I made his class read law review articles from academics who take different views on the matter, He obviously thinks they should not (or should not have here). Perhaps you say otherwise.

But what I dislike is the implication that one of our students doesn't know what he's doing or is incompetent. I think that's wrong.

illusory tenant said...

Oh, I think he knows exactly what he's doing.