February 24, 2008

SCOTUS to affirm Louis Butler?

Convicted murderer Mark Jensen's attorney, Stephen Glynn, seems to think so (a "100 percent certainty"), along with just about everyone else quoted in today's Milwaukee Journal-Sentinel reporting on the Jensen conviction.

So what does this have to do with Louis Butler? It may be recalled that in State v. Jensen, the Wisconsin Supreme Court decision that allowed the admission into evidence at Mark Jensen's trial certain statements of the victim, Butler dissented.

And Butler dissented on precisely the grounds that now present themselves to the U.S. Supreme Court in a case called Giles v. California. (More on Giles here.)

I discussed State v. Jensen back in December in this post. The following is from Justice Butler's dissent:
Because I conclude, contrary to the majority, that the forfeiture doctrine should be applied (1) where the defendant caused the absence of the witness and (2) did so for the purpose of preventing the witness from testifying, I respectfully dissent in part.
And here is the question presented to the U.S. Supreme Court:
Does a criminal defendant "forfeit" his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?
More later ...


Anonymous said...

Well, your lede isn't quite accurate. Glynn didn't presume that Butler's view would be affirmed (a rash prediction for a decades-long premier criminal defense attorney ); rather, he merely presumed that if Butler's position were adopted, then Jensen would get a new trial:

Milwaukee lawyer Stephen Glynn, one of the attorneys who represented Jensen, said he considers a new trial for Jensen a "100 percent certainty" if the Giles case is overturned.

Yes, this is a bit of a quibble, but I do think there's a larger point to be made. Whether or not Butler's position ultimately prevails doesn't really matter. What's more significant is that he exercised critically independent judgment -- surely a trait we're looking for in an appellate justice. The very fact that the Court granted cert (overall, an increasingly rare event) on precisely that issue shows that Butler's dissent is well within the mainstream of legal thought.

Bill Tyroler

illusory tenant said...

Thanks for stopping by, Counsellor. I admit I was having a bit of fun with the "100 percent certainty" remark.

Your larger point is also well taken and it's precisely what I was (and am) planning on addressing later.