April 3, 2009

Loophole Gableman, Parte the Firste

Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.
Gableman campaign teevee ad script
Here's one of several highlights from the latest pleading in the case of Michael Gableman, the Wisconsin Supreme Court justice accused of violating the State Code of Judicial Conduct:
¶7. That "Butler found a loophole" in Reuben Lee Mitchell's case is true.
No, it isn't. It's false. Literally. By definition.

In fact, the opposite is true: It was the adverse party, the State of Wisconsin and not Louis Butler, which attempted to find a "loophole" in the rape shield statute (Wis. Stat. § 972.11(2)(b)).

Black's Law Dictionary, 7th ed., defines "loophole" as follows:
An ambiguity, omission, or exception (as in a law or other legal document) that provides a way to avoid a rule without violating its literal requirements ...
Finding a way to avoid the rule of evidence announced in the rape shield provision is exactly what the State of Wisconsin tried to do.

In appealing Mitchell's 1985 conviction for sexual assault, Butler did not find — nor did he even claim to find — an ambiguity, omission, or exception in the law. Neither was Butler attempting to demonstrate a way to avoid the literal requirements of the evidentiary rule.

Rather, he relied on that rule's literal requirements, which prohibit the introduction of evidence of the victim's prior sexual conduct.

Mitchell's defense lawyer at the trial (who was not Louis Butler) had several times objected to the introduction of that evidence, which objections were also based on the literal requirements of the rape shield provision, but was overruled. It was those determinations of the trial court judge that formed the basis for the appeal.

The court of appeals decided that not only was this evidence inadmissible — again, based on the literal requirements of the law — but also that it had prejudiced the jury to such an extent that Mitchell's conviction had to be reversed, which the court of appeals did, and ordered a new trial (no charges were lessened or dropped, as Gableman describes Butler's role elsewhere in the same pleading).

The State took it to the Wisconsin Supreme Court, which agreed with the court of appeals that the trial court had erred in admitting the evidence, but determined that that error was harmless as opposed to prejudicial and upheld Mitchell's conviction. It was before the Wisconsin Supreme Court that the State's attorneys argued in favor of "loopholes" overriding the plain language of the law.

Moreover, the (unanimous) Supreme Court found, among other things, that the legislature had originally drafted the rape shield provision as a response to an earlier decision of the Supreme Court (State v. Gavigan), and indeed had drafted it expressly to prohibit courts from reading exceptions ("loopholes") into the law.

It was such an exception unauthorized by statute — or "loophole" — that the State of Wisconsin, and not Butler, argued in favor of. The Supreme Court unanimously declined to accept the State's position.

Gableman's defense of the veracity of his television advertisement is based in a theory that each individually stated proposition contained in the ad is true, notwithstanding the fact that those statements viewed together in context themselves constitute the statement for which he stands accused of violating the Code of Judicial Conduct.

But according to the meaning of Michael Gableman's own carefully considered words and the case history upon which he depends,* not even the individual proposition he defends in ¶7 above is true.

Gableman pledged to apply the "plain language of the law" throughout his political campaign. Surely he should be held to that promise.

On the other hand, Gableman might maintain that his deliberate (and, as he admits, deliberative) choice of the term "loophole" wasn't limited to any technical, legally-defined sense, but instead was an appeal to some manner of squishier, vernacular understanding among his prospective audience of political supporters.

If so, then that line of semantic reasoning would place him at odds with his current, rigid theory of defense wherein the meaning of each individual proposition is strictly defined and discrete, and on a path toward at least a tacit admission that his considered intent was to misrepresent via ambiguity Louis Butler's involvement in Mitchell's appeal by suggesting a connexion between Butler's professional responsibilities and R.L. Mitchell's subsequent, unrelated offenses.

Either way, he's gone and got himself in quite the jackpot and I, for what's it's worth, am not real impressed with his defense even though it was formulated by the illustrious Hoosier, James Bopp, Jr.

To say nothing of his decision to even attempt a defense.

* ¶13. Justice Gableman made every reasonable effort to ensure that the Ad was accurate by ... [b]eing familiar with the Mitchell cases in general, with their facts and holdings, and the arguments advanced by Butler, who represented Mitchell.

Emphasis added.


Jim Bouman said...

You may or may not have seen this screed from Waukesha's lackluster lightweight leaker of a DA. I'd send it by e mail, if only you still had your address on the site. You may want/need to eviscerate the kinds of distortion found on each and every line of this.


Water Blogged

Publication:Waukesha Freeman (Conley); Date:Apr 3, 2009; Section:Opinion; Page Number:8A


Go beyond ads to consider Supreme Court race

By Brad Schimel (Brad Schimel is the Waukesha County district attorney.)

Wisconsin once again has a contested race for our Supreme Court. Once again, the difference between the candidates revolves around the candidates’ judicial philosophy. There is a clear difference between the candidates.

The challenger is veteran Jefferson County Circuit Court Judge Randy Koschnick. Koschnick is a judicial conservative, who believes that it is the job of the Legislature to write the laws. In his 10 years as a judge, he has distinguished himself as a leader on the bench. In fact, in 2008, the Wisconsin Law Journal named him a “Leader in the Law” for his work to make justice more efficient.

The incumbent is Chief Justice Shirley Abrahamson, who was first appointed to the Supreme Court by Gov. Patrick Lucey in 1976. After 33 years on our Supreme Court, she wants another 10-year term. Abrahamson has been recognized nationwide as a judicial activist. Until this race, she was publicly proud of that reputation.

Now, in response to challenges that she is an activist judge, she says she does not know what that means, and that it is just “name calling.” Abrahamson knows very well what it means to be an activist judge. She has repeatedly used her position on the bench to overturn and rewrite the laws passed by the Legislature.

Perhaps some examples would help explain what it means to be an activist judge. When the Legislature put limits on the payouts in medical malpractice claims, Abrahamson overturned the law. The law was gone with no public debate or input.

A political ad that has been running over the course of the last week is particularly troubling. In it, Abrahamson claims responsibility for a Wisconsin law that holds repeat serious sex offenders accountable. The Legislature enacted the “Two Strikes” law. When a case challenging the law came before the Wisconsin Supreme Court, Abrahamson voted with the majority to not overturn the law. In that case, the court did not substitute its judgment for that of the elected legislature. That is good, but not usurping the function of the Legislature hardly entitles Abrahamson to take credit for creating the law.

What has been her record on sex offenders? Twice Wisconsin’s sex predator law came before the Wisconsin Supreme Court for review. Twice the lone voice against the law was Abrahamson. That law has kept hundreds of the very most dangerous sex predators confined. The U.S. Supreme Court also disagrees with Abrahamson. It has held that laws like Wisconsin’s law are constitutional.

Let’s be honest. Abrahamson’s record does not support a political claim that she is responsible for keeping the community safe from dangerous sex offenders.

The same ad characterizes Justice Abrahamson as standing up for victims. Don’t be misled. They are not talking about crime victims. They are talking about the infamous “lead paint decision” in which Abrahamson struck down long-standing law that required a plaintiff in a lawsuit to prove that a company’s product actually caused them harm before the plaintiff could collect money from the company. That decision sent a chill through the Wisconsin business community. It had nothing to do with crime victims.

How has Abrahamson ruled regarding crime victims? In a 2005 decision, she outlawed the long-standing police practice of having a crime victim identify an offender at or near the scene of the crime. The procedure was much more convenient for victims and police. The U.S. Supreme Court says the practice is constitutionally sound and reliable, but Abrahamson says the Wisconsin Constitution gives more rights to criminals than the U.S. Constitution. The decision ignores a legal tradition that has interpreted the virtually identical language of the federal and state constitutions to mean the same thing.

The two candidates for Supreme Court have already gone toe to toe in court in a sense. Koschnick was trial judge in the so-called “bloody shirt” murder case. Koschnick followed prior law and allowed into evidence a bloody shirt that connected the defendant to the murder. Abrahamson overturned the conviction. The case went to the U.S. Supreme Court, which held that Koschnick got it right.

When the case came back to Wisconsin, Abrahamson again struck down the conviction and said once again that the state constitution gives more protection to criminals than the federal constitution.

Don’t be misled by the ads. Go to the candidate Web sites. Read the newspapers. Find out the truth. Then vote Tuesday. Voter turnout in spring judicial races is typically anemic. It is a great opportunity for your vote to really mean something. It is your responsibility.

Unfortunately, there probably won’t be long lines.

illusory tenant said...

Thanks and thanks for reminding me.


illusory tenant said...

Abrahamson overturned the conviction. The case went to the U.S. Supreme Court, which held that Koschnick got it right.

Not this again. There was no conviction, the trial was stayed while the Supreme Court deliberated on Koschnick's evidentiary rulings.

And the U.S. Supreme Court most certainly did not "hold" that Koschnick "got it right."

Are you sure Charlie Sykes didn't write this?

Display Name said...

I've always found that vernacular use of "loophole" to be an interesting one. It pretty much means anything the speaker wants, doesn't it? It's right up there with "technicality". If someone beats you with a rule, it's a technicality.