March 31, 2008

CFAF "deemed" criminally inept Part 9

Forge ahead we must, and forge ahead we shall.

41. State v. Armstrong 2002AP2979

Armstrong is another case that CFAF arbitrarily strikes from the list simply because the docket number doesn't contain the -CR suffix. This is odd, and not just for that reason. Because at the center of the case is an especially brutal rape and murder. The same brutal rape and murder, in fact, pursuant to which CFAF arguably committed defamation in another of CFAF's own television ads directed at Butler's record in deciding criminal cases!

That was the ad that was so blatantly biased, inflammatory, and arguably legally actionable that WBAY in Green Bay refused to run it until the defamatory language was removed and Madison's WISC refused to run it at all.

Yet once again, here we have CFAF, using this exact same case to wildly misrepresent Justice Butler's record and now demanding that Butler not be allowed to use precisely the same case to defend his record. The hypocrisy is breathtaking. The irony, of course, is that Butler openly acknowledges that he wrote for the majority to grant Armstrong a new trial (not to release him back onto the streets) in light of newly discovered DNA evidence that cast reasonable doubt as to whether the samples presented during the original trial belonged to Armstrong in the first place.

So Butler counts Armstrong "against" himself in reaching the percentage presented by his campaign. In the closely related honesty v. honesty calculus, Butler wins hands down and the so-called "Coalition for America's Families" would do well to take note, since the last time I checked, honesty was a fairly important consideration generally, its transmission and propagation among and between family members (and beyond) being something to be encouraged.

As for the threshold legal dispute between the majority and the dissenters, it was whether or not, as Justice Roggensack put it, a retrial using less constitutionally infirm evidence would have created a different outcome for Armstrong. Imagining herself deliberating in the place of a jury of 12, Roggensack concluded that it would not. Butler and the majority, on the other hand, considered it more prudent and careful not to do so, but rather allow a panel of citizens to make that call.

Burnett County conservative Republican Mike Gableman can rave and rant baselessly all he wants about Justice Butler's "consistent" record of placing his own personal views before those of the people of Wisconsin and its elected representatives, but he has no evidence in support of that claim, but there is considerable evidence against it, State v. Armstrong being a compelling example.

It's also another indisputable example of CFAF's miserable and dishonest little GOP games.

42. State v. Denis 2003AP384-CR

Denis is a somewhat puzzling case involving the waiver of therapist-client confidentiality among the parties arising from the repeated sexual assault of a three-year-old girl by her grandfather. Of all the 70-odd cases I have read for this series, Denis easily presents the most difficulty in terms of teasing out the pertinent facts from an extremely confusing record and applying them against the relevant law.

As a matter of fact I wouldn't at all be surprised if that is why the task fell to Justice Butler's prodigious analytical skills, and he wrote for a unanimous court to deny the defendant's challenge. CFAF agrees, probably because whatever was left of its alleged brain exploded after about the fourth paragraph of Butler's opinion, if it even got that far.

43. State v. Aufderhaar 2003AP2820-CR

Aufderhaar represents Jessica McBride's only triumph in her partisan attempts to not only attack Justice Butler's record but also his character and his professional integrity, so let's give credit where credit is due: McBride discovered a typo in the Butler campaign's list of 70 cases. [Cue momentary Purcellian fanfare.]

So thanks for that, at least, and I've corrected it. As for the court's disposition, it reversed the court of appeals affirmation of the circuit court's denial of Aufderhaar's motion to transfer his case from criminal court to juvenile court. Yes, attentive reader, that's right. Justice Roggensack's opinion for a unanimous court ordered the circuit court to dismiss the criminal charges against Aufderhaar, meaning the court's decision rendered the defendant no longer a criminal for the purposes of the law.

Yet both CFAF and McBride count this toward their labeling of Justice Butler as significantly "pro-criminal." Justice Butler, for his part, does no such thing, understanding far better than either CFAF or McBride not to engage in such risibly foolish pursuits, yet openly acknowledges that his disposition favored the defendant, along with the most "conservative" members of the court. Are either CFAF or McBride willing to tar Justice Roggensack and former Justice Wilcox "pro-criminal" pursuant to their decisions in Aufderhaar? Rhetorical question, obviously.

Elsewhere it's been suggested that Butler not include juvenile cases in order to defend himself against the falsely formulated and falsely launched attacks against his record, even where those attacks contain references to those very cases. Yet both CFAF and McBride, by applying the absurd and arbitrary methodology of only counting cases where the docket number includes the -CR suffix, have counted precisely one of those cases and furthermore one where a unanimous court explicitly rules the defendant is not a "criminal."

There are a number of possible ways that CFAF and McBride could have erred in their "analyses" of Justice Butler's record, and it seems to me that CFAF and McBride have somehow found a way to commit every single one of them.

Yet they soldier on, and others continue to defend their methodology. I flatter myself in maintaining that it's a good thing for my devoted readers — few as they may be — that all of this doesn't leave me completely speechless, as it would many, many others, I am certain.

44. State v. Ernst 2003AP1728-CR

CFAF "deems w/ Criminal." Such a designation is manifestly unfair on its face for the following reasons and further proof that whoever is reading these cases on the anti-Butler forces' side hasn't the slightest clue what they're looking at.

Ernst presents a mixed bag of very complex constitutional and procedural questions. There is no way I am going to enumerate and explain them all at this stage of the game. Suffice to say that Ernst was awarded very little by the unanimous court and what he did win had upon it placed severe restrictions by the court. On the other hand, and on balance, the State won considerably more. From the opinion:
[W]e hold that the State may call and elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise his or her Fifth Amendment privilege against testifying. Finally, we conclude that the defendant's refusal to testify under these circumstances allows a circuit court reasonably to infer that the State has satisfied its burden of showing a knowing, intelligent, and voluntary waiver of the right to counsel.
As I said, on balance, the State won in the Supreme Court and it's a safe assumption this is why the Butler campaign designated the case as it did.

However, in the interests of fairness, and because it is entirely unfair to accede to CFAF's laughably uninformed demands, I'll consider this a wash, and designate the same value in each of the "pro-defendant" and "pro-State" columns of my master spreadsheet. Nevertheless, I do this reluctantly, and I know that I could make a more than persuasive case that, on balance, the State won this case.

In the meantime I challenge anyone to dispute the foregoing, and am completely prepared to defend it in detail. But there's no way I'm going to do it here right now, because I'd need to get paid to do that. In the meantime let it stand as yet another example of CFAF's utterly disingenuous and downright incompetent project.

45. State v. Jerrell 2002AP3423

Jerrell is the next case CFAF strikes from the list because it isn't designated with the -CR suffix. Tough. Jerrell, despite being a juvenile case, is also another that Butler's detractors have used repeatedly to attack his record in dealing with offenders, including by Professor Esenberg, who discusses it at some length in his Federalist Society paper, "A Court Unbound?" And let's not forget that "A Court Unbound" was and is the title and theme of Wisconsin Manufacturers & Commerce's well-funded series of essentially groundless attacks against Justice Butler, which includes the profoundly anti-American assertion that the Sixth Amendment of the U.S. Constitution is a "needless technicality."

Once again, how dishonest can you get, attacking a sitting State Supreme Court Justice on his record by citing to a hand-selected series of decisions and then demanding that he not be allowed to cite to those exact same cases in defense of his record. Such a project should be included in the Oxford Dictionary of the English Language as an example of unfairness. It stays in the calculation for that reason alone.

46. State v. Bush 2003AP2306

Still another attempt by CFAF to suppress Justice Butler's right to defend himself against CFAF and others' scurrilous campaign of character assassination.

"Not classified as criminal by the court"! declares CFAF and arbitrarily tosses it from the list. And, once again, it doesn't matter. Bush deals with the circumstances of the defendant's Chapter 980 proceedings related to his status as a dangerous offender, proceedings in which Bush never would have found himself had he not committed and been convicted of a number of sexual assaults.

I repeat, because this is crucial, that CFAF and others are attacking Butler's record in dealing with criminal offenders generally. It wasn't until very recently that CFAF and Jessica McBride came up with the ruse of including only those cases bearing the -CR suffix. The ruse came about after CFAF, and immediately thereafter McBride, were challenged to defend the ridiculous and unsupportable claim that Justice Butler "sides with criminals 60% of the time." CFAF originally invented the figure out of thin air, and now they will do anything to try and justify it. But they can't. So they resort to these obvious and desperately cheap tactics.

Even more ridiculous is that both CFAF and McBride are resting this demand on a legal technicality when, simultaneously, they are proving themselves completely incapable of comprehending any of the true legal technicalities that present themselves in the cases. In fact, it's obvious to me that they haven't even read many, if not most, of these cases. And some people wonder why I think their project is a joke, and that McBride is a hack. That wonderment in and of itself is a bit of a joke.

What makes all of the foregoing even more pathetic is that Bush, which Butler himself wrote for a unanimous court, is representative of the most "anti-criminal" disposition that one could hope to find, which I have already discussed elsewhere.

Yet, the farce continues, to an unforgivably shameless degree. It's nothing short of outrageous.

47. State v. Smith 2003AP1698-CR

As if any additional evidence of CFAF's demonstrable — and, I claim, demonstrated — incompetence is required, here it is. Smith is a near-unanimous opinion, authored by Justice Roggensack, in which the defendant's two convictions were reinstated after the court of appeals had reversed the circuit court's initial judgment of conviction.

Justice Butler concurred in part and dissented in part. The upshot of Butler's dissent is that he would have ordered a new trial, after writing yet another of his thoughtful and incisive constitutional analyses. Of course the dispositional, legal effect of Butler's dissent was practically zilch, since he wrote alone. Nevertheless, Butler correctly and accurately counted Smith "against" himself.

CFAF, hilariously, counts it in Butler's "favor." Earlier I had mentioned that CFAF never disputes Butler when he counts cases "against" himself. I was about to correct myself on that account, but it's so obvious that CFAF simply committed yet another incompetent blunder, and that its mistake clearly didn't result from any attempt at actually engaging the reasoning presented in the opinions themselves.

I know it gets tricky when the circuit court does something, the court of appeals reverses, and then the Supreme Court reverses that. It tends to get hard to follow, especially even for the brilliant legal minds at CFAF, apparently.

Obviously, and given CFAF's own record in all of this, it would have jumped all over the opportunity to "agree" with Justice Butler's case designation for Smith. I understand that there are two or three "Smiths" on the list of cases, but they also contain little numbers to help you differentiate between each "Smith" and the others. CFAF was only looking for the letters, however, the letters -CR, which is independently fatuous for a number of reasons described supra and infra and indeed everywhere-a and throughout-a.

Never fear, however, I say to the good "family values" people at CFAF. I caught your laughable blunder, and the convictions remain in the correct column, where Justice Butler had put them in the first place.

No need to thank me, CFAF, but you're very welcome nonetheless.

48. State v. Anson 2003AP1444-CR

The Supreme Court, in a unanimous opinion authored by "traditionalist" hero former Justice Jon P. Wilcox, upholds the court of appeals reversal of Anson's judgment of conviction for second-degree sexual assault of a child. Butler joins Wilcox's opinion in full. No Gableman television ads appear depicting Justice Wilcox as an enthusiastic supporter of child molesters.

CFAF, in yet another failed effort to regain even a shred of credibility, let along establish any credibility in the first place, does not dispute.

49. State v. Manuel 2003AP113-CR

Justice Butler, writing for a unanimous court affirming a decision of the court of appeals, upholds Manuel's six convictions, including one for first-degree homicide. CFAF, asleep at the switch again evidently, does not dispute.

50. State v. Stenklyft 2003AP1533-CR

I have been threatening to discuss State v. Stenklyft for several weeks, and I will, as soon as I can. In fact I have nearly completed a lengthy post dealing only with this tremendously important case, which involves fundamental constitutional notions of the judicial power and its separation from the other two branches of government. Therefore I am more than prepared to defend the following claim: The Gableman campaign's own one-liner characterization of Stenklyft is a deliberately misleading farce of epic proportion.

Moreover, CFAF's taking issue with Butler's categorization of Stenklyft is, by extension to the foregoing, laughable. It stays exactly where it is on Butler's list.

Need I continue? Obviously not. But I will anyway. Opportunities for definitive smackdowns of this magnitude are few and far between, and this one is a distinct and hilarious pleasure.


To part 10 ...

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