March 26, 2008

Cooking with Esenberg

[Edited to add, Friday, March 28, 11.50 p.m.
Esenberg, to my knowledge, has yet to address any of the substantive questions I posed to him below, which I'd previously left at his blog as well. They seem like pretty straightforward questions to me, and I could answer them all immediately. Lately Esenberg has busied himself with still more defenses of McBride, and has been lauding her work, despite the fact that she has presented no useful or meaningful details for her conclusions. In the meantime, Prof. Esenberg has a few more questions to answer, which I've left in the comments section of his post here, one of four he's produced today, none of which reveal the sources of McBride's conclusions.]

The Coalition for America's Families (CFAF), a local conservative GOP outfit, claims that Wisconsin Supreme Court Justice Louis Butler "sided with criminals 60% of the time." This is, as I will continue to demonstrate, a thoroughly bogus fabrication. Here's another quick hit in the meantime.

In State v. Harris, a unanimous court, including Justice Butler, voted to affirm the criminal conviction of Harris, who was busted for possession with intent to deliver cocaine.

But CFAF doesn't even include Harris in its phony "analysis." Why not? Because, CFAF says, "This [case] came up after CFAF Ads began." Well, so what? You want to attack Butler for his record in affirming criminal convictions, and you toss out a case where Butler affirmed a criminal conviction because it doesn't coincide with your own schedule of manipulative jiggery pokery?

Because it's not convenient to your project of attacking Justice Butler with what are essentially lies? Give me a break.

This is how the conservative Republican "family values" crowd operates, apparently. The truth is, in cases involving criminal convictions, Justice Butler's votes went to reversing only about 25% of convictions, and that is not including Jerrell, C.J., a juvenile case that Marquette Law Professor Rick Esenberg says shouldn't be included in the calculation.

So even if one defers to Esenberg's quibbling, the number is a far, far cry from 60%, let me assure you.

Speaking of Esenberg, he made a rather illuminating remark the other day on this issue. In the course of supposedly evaluating the Butler campaign's list of 70 cases released in support of Butler's record in reviewing criminal appeals, Esenberg claimed, in a blog post provocatively entitled "It's not getting any better,"
First, the campaign has included a number of cases involving civil commitments or adjudications of delinquency, in which there was no conviction at all.
"A number," Prof. Esenberg? What number might that be? Here's the comment I left at Esenberg's blog, Esenberg's words in bold:
First, the campaign has included a number of cases involving civil commitments ...


One of them, State v. Richard A. Brown, has been used repeatedly to attack Justice Butler.

Do you seriously expect him not to make reference to it in his defense?

The other, State v. Bush, is about as "anti-criminal" as it gets.

Do you seriously expect Butler not to cite this case in defense of the scurrilous attacks against his record?

or adjudications of delinquency, in which there was no conviction at all.

Adjudication, singular. There is but one juvenile case on that list. And you yourself have used it to criticize Justice Butler.

Do you seriously expect him to not make reference to it in his defense?

Let me ask you one more time: Who exactly is it that's "sniping around the edges" on this issue?
The latter reference is to Esenberg's accusation against me that I have only been "sniping around the edges" when it comes to Butler's record in cases involving criminal convictions. It's pretty obvious now who's "sniping around the edges," and it's also pretty obvious that Esenberg hasn't evaluated the figures released by Butler's campaign anywhere near as closely as I have.

Esenberg, like Jessica McBride, wants it both ways. They want to be able to criticize Justice Butler on certain cases, but they don't want to let Justice Butler cite to those very same cases in his own defense. How shamefacedly dishonest can you get?

But, you know, I'm not a scholar. However, I can see that dishonesty has been pretty much the hallmark of Burnett County conservative Republican Michael Gableman's campaign, so it's not all that surprising that his supporters have caught the bug.

Esenberg never answered my questions, incidentally, nor has he acknowledged how profoundly misguided his reference to "a number of cases" is. But that hasn't stopped Prof. Esenberg from accusing Butler of "cooking the numbers." We will see what Esenberg has to say about CFAF's little project, where, unlike in Esenberg's case, it can actually be demonstrated that they "cooked the numbers."

Gableman, who is quickly running short of GOP talking points now that they're getting systematically debunked on a daily basis, was even reduced to appealing to Esenberg's supportive observations during a debate with Justice Butler in Madison last night.

Esenberg continues to insist he isn't supporting either candidate in this election. Yet, at his blog, he's rushed a number of times to the defense of "Scoop" McBride, whose bungling attempt to analyze Justice Butler's record makes her a laughing stock.

Esenberg would sooner believe some ridiculous partisan hack than a sitting Justice of the Wisconsin Supreme Court. That's what gets me.

Yet Esenberg obviously hasn't looked at the numbers very closely either, as I have, nor has he said a word about CFAF's and others' complete falsehoods. But no, Esenberg isn't supporting either candidate. Not at all.

Maybe he's got some Florida swampland for sale also. Or credibility.


Rick Esenberg said...

I'll explain it to you one more time. I started this whole thing by saying that it was OK to include cases like Brown (both of them) and Jerell C.J if you're looking at some larger notion of whether or not someone has ruled against defendants or inmates. Of course, then you have to include all of them and not just the ones that the other side referred to.

But if you are looking at the narrower notioon of whether a criminal convictions was uoheld, you ought not to include them because they didn't involve criminal convictions or the question of whether a criminal percentage was overturned or not. You only calculate the quarterback's completion percentage on the number of passes thrown.

And even if you are going to treat a decision whether to release a civilly committed sexual predator or an adjudication of dleinquency as akin to a conviction, then the Butler analysis has it wrong because, in those cases, the defendant got the denial of relief from his or her commitment or adjudication overturned.

In other cases, there was never a question of the conviction being overturned and the defendant simply obtained other relief. If you are only at convictions overturned or upheld, you can only include cases where that was the issue that was decided.

When you start to add these things up, it becomes clear that the Butler campaign's analysis is wanting.

The CFAF analysis may be too, but you haven't really shown that yet - although it does seem to me that saying that Butler voted to uohold 2 of the 3 convictions in Young and to uphold in Mayo - is a good rejoinder. But I'll comment on that later.

Incidentally, the standard for such matters is to explain why you know that McBride's list is the CFAC list and to share the CFAC's analysis of the list (i.e., how they treated each case) with others so that your work can be critiqued. Did I miss that?

illusory tenant said...

Yes, yes, I understand all that perfectly well.

Did I miss that?

Yes, you did. It's the same list that McBride used, that came from the Butler campaign originally, the same 62 cases, in the same order, and with the same typo. Same list.

But they removed the conviction count. It's a scam, Prof. Esenberg.

And CFAF couldn't even produce its own list of cases. And I have been sharing CFAF's analysis of the cases. It's a complete joke.

I notice also that you completely avoided my questions again. How come Butler's critics get to attack his record in criminal cases, but Butler doesn't get to use those same cases to defend it?

That is one of the more salient points here. We'll save the strictly academic inquiries until after the election.

In the meantime, I'm afraid you can't have it both ways. Professor.

Rick Esenberg said...

I explained why you can't have it both ways. If you're measuring cases that uphold or overturn convictions then you must limit yourself to cases that involve upholding or overturning convictions.

Ad for CFAC, if your analysis is not based on overturning or upholding convictions (and I take it that their's was not)then the count numbers don't matter.

If you can't understand comparing apples to apples, then I can't help you.

As for "missing it," why do you think that McBride's initial list is the CFAF list? And where do you get CFAF's analysis, i.e., which cases went for the defendant and which did not.

Again, the CFAF list may be total crap but I can't tell if I don't know what it is.

illusory tenant said...

As for "missing it," why do you think that McBride's initial list is the CFAF list?

As for missing it indeed. McBride got her list of 62 cases from the Butler campaign. She confirmed that herself.

The list that CFAF is now using in its near-pathetic attempt to justify its sphincter-produced "60% pro-criminal" figure is the same list. CFAF never produced any list, obviously.

Why do you think they're using Butler's via McBride?

In other words, both McBride and CFAF used the same list, and that list was originally produced by the Butler campaign.

Subsequently the Butler campaign produced the more recent list of 70 cases.

To sum up, nobody produced a list of cases except the Butler campaign. And both McBride and CFAF used the Butler campaign's intial list of 62 cases to, in effect, make fools of themselves.

More later.

Anonymous said...

Yeah, but how did you get the CFAF list IT?

illusory tenant said...

I thought I got it from you.

Anonymous said...

Well you didn't. And there's no way to know that CFAF was lying (other than taking your word) until we see the list that CFAF used. Your word isn't quite good enough; I know that you keep saying that the CFAF list is the same incomplete Butler list that McBride used, but damn man, prove it.

illusory tenant said...

Keep your shirt on. I'm busy. And I already said it's the same 62 cases, in precisely the same order, with the exact same typo in the exact same place.