WMC can't spin away from lies

Dave Zweifel in the Capital Times relates an amusing anecdote, in which a spokesmodel for Wisconsin Manufacturers & Commerce calls up to complain about one of Zweifel's previous columns.

According to Zweifel, WMC's Jim Pugh "insisted ... that the 'Loophole Louie' label they tagged on Supreme Court Justice Louis Butler was simply good-natured ribbing."

Is that so.

Consider WMC's teevee ad "Looking for Loopholes," in which an all-but-tearful narrator intones from the following script:

We've heard it before. Judge cites loophole, sides with criminal that threatens our safety. Take Justice Louis Butler. His colleagues called him Loophole Louie. ... A husband poisoned his wife. Butler cites a loophole, almost jeopardizing the prosecution.

The poisoning case to which WMC refers is State v. Jensen. The ad is one of two that WMC produced devoted to Justice Butler's opinion in Jensen.

Merriam-Webster defines "loophole" as "a means of escape; esp. an ambiguity or omission that allows one to evade the intent of a law or contract."

Justice Butler was the lone dissenter in Jensen, as against the six Justices in the majority, led by WMC's "traditionalist" avatar, former Justice Jon P. Wilcox. (That's how you "almost jeopardize" a prosecution, apparently.) This is what the majority held:

Today, we explicitly adopt this [forfeiture by wrongdoing] doctrine whereby a defendant is deemed to have lost the right to object on confrontation grounds to the admissibility of out-of-court statements of a declarant whose unavailability the defendant has caused.

In this instance, the "loophole" is the forfeiture by wrongdoing doctrine and the application of that "loophole" is its explicit adoption by the Jensen majority.

From the opening paragraph of Justice Butler's dissent in Jensen:

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (emphasis added). Article I, section 7 of the Wisconsin Constitution similarly provides: "In all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face" (emphasis added). The operative word in each of these constitutional provisions is the word "all." Neither provision creates a homicide exception to the constitutional guarantee of confrontation.

Facing precisely the same question arising from another State, the United States Supreme Court agreed with Justice Butler. From the Giles v. California syllabus:

Held: The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding.

The author of the majority opinion in Giles? Conservative standard-bearer Antonin Scalia, joined in full by Chief Justice Roberts and Associate Justices Thomas and Alito.

To be sure, should the man convicted of poisoning his wife, Mark D. Jensen, receive a new trial — which seems likely — it will be thanks to Justice Scalia and his conservative colleagues, and certainly not to Justice Butler's one-man dissent. In other words, Justice Scalia closed a loophole, he didn't discover one.

And the loophole Scalia closed is exactly the one to which Justice Butler objected. Elsewhere a WMC spokesmodel referred to Butler's objection, an objection grounded in the original understanding of the United States Constitution, as "a needless technicality."

Last week WMC issued a brazenly hypocritical press release, accusing its critics of waging "an organized campaign of misinformation." I would go further. WMC's characterization of Justice Butler's dissent in Jensen is beyond misinformation. It's a flat out lie.