In re Gableman: A guest blog

by Sachin Chheda

The justice who made it okay for judges to lie

Wisconsin media are reporting (see here and here) that State Supreme Court Justice Mike Gableman is fighting hard against the Judicial Commission action to discipline him for lying during last spring’s Supreme Court election. As the manager for the incumbent, Justice Louis Butler, I saw firsthand the sleazy tactics and the lack of accountability of the Gableman campaign.

And it wasn’t just Butler partisans who complained about Gableman’s tactics. Universally, observers condemned the Gableman campaign. While we stood by our pledge to run a positive campaign, Mike Gableman was roundly criticized, not just by progressives, but by conservatives and by national publications, for the unbelievable ad he ran falsely attacking Justice Butler’s work while a public defender.

Gableman now makes the argument that he should be allowed to lie, because the First Amendment requires allowing it. I’m not a lawyer, but I’m an American, and I would be very concerned if our basic rights under the First Amendment were threatened for political purposes. But that’s not what’s happening here in the Judicial Commission’s case against Gableman, nor in the criminal complaint that has been filed against him in Polk County (which the Polk County DA is sitting on).

The way I see it, the First Amendment says the government cannot punish Gableman for lying in his capacity as a private citizen. In a general sense, he’s free to lie about anything he wants, and if he's just a regular guy off the street, like Joe the Plumber (who also fudged the truth, but I digress), he shouldn't be arrested, put in jail, or fined. He should be able to lie freely, as long as he's just a regular American like the rest of us.

But once he stands for public office, we, the people, have every right to expect him to not lie. We can, and should, create consequences for when public officials lie. After all, we’re the “bosses” of public officials, right? You can be fired for lying to your boss, right? You can be docked a day's pay, right? Does anyone believe that a boss shouldn’t be able to fire a worker for lying to the boss?

Mike Gableman lied to the people of Wisconsin, and he did it to get a promotion. He was a sitting judge, and he violated the ethical constraints of his job — of his profession.

At its core, Gableman's counterclaim is that he wants to get rid of the rule that judges can't lie. Does that mean that there is no accountability for judges, save an election that can be manipulated by lying? It's patently ridiculous.

I think his actions defending the right of judges to lie call into question Mike Gableman’s fitness to be a judge, let alone a member of the state's highest court. Those who supported him should be embarrassed by his continued defense of this racist, shameful and untruthful advertisement, and his legal machinations to end accountability for lying judges.

Sachin Chheda is a consultant in Milwaukee who works primarily with political campaigns and nonprofit organizations. He served as campaign manager for Justice Louis Butler’s bid to retain his seat on Wisconsin’s Supreme Court in April, 2008.

Gableman then and now

Then:

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 rape another child.

Now:

Justice Gableman denies the Advertisement states "that Louis Butler had any responsibility for or involvement in Mitchell's release from prison in 1992 or that any action by or work of Louis Butler had anything to do with Mitchell's commission of the subsequent criminal molestation referred to in the Advertisement."

At the very least, the Advertisement most certainly does "state" that Louis Butler worked to put Reuben Lee Mitchell on the street. And the clear suggestion is that Butler's work did put Mitchell "on the street," which is where he committed the subsequent offense.

Gableman Answer* (.pdf; 13 pgs.).

* Short version: Justice Gableman denies violating the Wisconsin Supreme Court Rule and even if he did, the Rule itself is an unconstitutional abridgment of his freedom of speech.

Gableman panel empaneled

After a false start.

Reportedly, Wisconsin Supreme Court Justice Michael Gableman is planning on challenging the constitutionality of the Wisconsin Supreme Court Rules provision he stands accused of violating:

A candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent. A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

Emphases added.

This means Gableman will have to show that the above Rule (SCR 60.06(3)(c)) operates as an abridgment of free speech under the First Amendment, which is applicable to the States through the Fourteenth Amendment.

Gableman, despite having been narrowly elected nearly seven months ago, continues to speak through his campaign manager, Darrin Schmitz. Schmitz appears to claim that because each and every individual sentence in the contested advertisement is "truthful," so therefore is the overall communication conveyed by the ad.

Thus I suppose if I tell you that the moon is made of green cheese, it must be true because there is a moon, there is cheese, and there are things that are green, out of which other things can be made.

My question is, how many Gableman votes was the ad's alleged "truthfulness" responsible for. The panel may not reach that question, but it seems pretty much dispositive to me.

It certainly was intended to sway voters.

Gableman grievance has merit

Unlike the United States Constitution, which places only a requirement of "good Behavior" on Justices of the U.S. Supreme Court, in Wisconsin a "supreme court justice ... must be an attorney licensed to practice law in this state."

Because of that State constitutional provision, Wisconsin Supreme Court Justice Michael Gableman's investigation by the Office of Lawyer Regulation might be even more troublesome for him than is his concurrent inquiry with the Wisconsin Judicial Commission.

While removal from the bench is by far the most severe disposition that may result from the Judicial Commission's activities, the OLR, depending on the circumstances of its investigation, can petition the Supreme Court to suspend Gableman's license to practice law, the granting of which petition would render Gableman ineligible to serve on the court (or any State court, for that matter).

Gableman's campaign consultant, Darrin Schmitz, calls the grievance filed with the OLR "frivolous." Unfortunately for Schmitz, it's his own objection that's without any merit because the OLR would not have appointed a special investigator unless "there [was] sufficient information to support an allegation of possible misconduct."

In other words, the Office of Lawyer Regulation has already made a determination that the complaint against Gableman has some merit. Otherwise the OLR would have closed the matter had the grievance not "present[ed] sufficient information of cause to proceed."

But why a Republican "campaign consultant" is still speaking on behalf of a sitting State Supreme Court Justice is anybody's guess. After all, it's consulting with Republican operatives that got Michael Gableman into this latest pickle in the first place.

eta: Gableman merits Howard Bashman's blawg.

More excitement for Gableman

Already facing possible discipline from a Judicial Commission complaint, state Supreme Court Justice Michael Gableman is now also under investigation by the Office of Lawyer Regulation for long-distance calls to campaign fund-raisers and donors from his office when he was a district attorney.

Madison lawyer Paul Schwarzenbart has been named special prosecutor by the Office of Lawyer Regulation in the case.

In all, 60 calls went from Gableman’s office to Republican campaign offices, [former Wisconsin Republican governor Scott] McCallum fund-raising staff, and McCallum donors in the weeks before Gableman hosted a June 2002 dinner for McCallum, records show. Most of the calls were brief, but some lasted 15 minutes or more.

McCallum appointed Gableman to be Burnett County circuit judge two months after the event.

Another Gableman investigation — Journal-Sentinel

Gableman: This is not news

The bolded portion, at least:

The [Wisconsin] state Judicial Commission levied charges today against state Supreme Court Justice Michael Gableman, alleging he knowingly misrepresented facts in a campaign ad that helped elect him in April.

Milwaukee Journal-Sentinel

We may assume "knowingly" based on Gableman's qualifications to sit on the Wisconsin Supreme Court. Link to the ad right here.

eta: Gableman campaign statement at WisPolitics.com.

The Judicial Commission's complaint (.pdf; 5 pgs).

Poor Mike Gableman

It's been some time since we've encountered Daniel Suhr, the fresh young GOP fellow in the robin's egg sweater vest combo.

Now it seems that Master Suhr has taken special umbrage at Adam Liptak's description of renowned conservative Republican Mike Gableman as "a small-town judge with thin credentials" in the pages of the New York Times. "This East Coast elitism is just rancid," moans the young GOPer.

First of all, Siren, WI is a small town by any measure.

But it's simply not true, Suhr 'argues,' because Mike Gableman's "four years as a front-line prosecutor is more than [Wisconsin Supreme Court] Justices Abrahamson, Bradley, and Butler have combined." Naturally, young Daniel doesn't mention that Justice Butler has been a judge — on three different courts — for longer than Mike Gableman has been a lawyer.

And a highly effective front-line prosecutor Mike Gableman was. So effective that he sat on a homicide case for two years, one so cold blooded that the criminal complaint indicated the alleged perpetrator blew a hole in his wife's back with a shotgun as she fled away from him, and the county where Mike Gableman toiled as a prosecutor refused to elect him to the Wisconsin Supreme Court, despite every surrounding county's determination to the contrary.

Likely because Ashland County is where they know "front-line prosecutor" Mike Gableman the best. And by the time charges were filed by Gableman's successor in office, after Gableman high-tailed it to an administrative position at a 20k per annum pay cut thanks to his political connections with former Republican governor Scott McCallum, the defendant removed himself from the gene pool.

And Mike Gableman had the temerity to claim repeatedly, during one of the most disgraceful political campaigns in recent memory, that he was a righteous advocate for victims of crime.

"I was mad as hell," the victim's cousin, Jerry Bauch said. "I was frustrated because the case simply went nowhere during the three years that [Mike Gableman] was district attorney."

That's some quality victim advocatin' right there.

However, it is true that Gableman won Burnett County fairly handily, because after all, that is where Judge Mike Gableman "presided over" 9,000 uncontested traffic tickets.

And that is no thin credential. It's enough to wallpaper Siren, WI.

"There's no need to insult the man," sniffs college Republican Suhr, who, via some particularly laughable contortions, depicted Justice Butler as a clear and present danger to the "safety, prosperity, and health of the citizens of many states, especially Wisconsin."

No, there's no need to insult the man, he just earned the privilege.

"Insane and characteristically American"

Adam Liptak has a piece in today's NYT on judicial appointments vs. popular elections, which focuses on last month's Wisconsin travesty.

In an interview, Justice Butler said the past few months had tested his commitment to elections. "My position historically has been that there is something to be said for the public to be selecting people who are going to be making decisions about their futures," Justice Butler said.

"But people ought to be looking at judges’ ability to analyze and interpret the law, their legal training, their experience level and, most importantly, their impartiality," he continued. "They should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed."

Amen, brother.

And not just the campaign ads, but virtually everything written and shouted by the most obnoxious, dissembling conservative Republicans in the State.

Judge Gableman did not respond to phone messages seeking comment.

Not surprising. If I were he, I'd lay low also. Why get up now.

Patrick McIlheran's Supreme arrogance

A couple of days before the April 1 State election, Patrick McIlheran of the Milwaukee Journal-Sentinel printed an exceptionally silly — even for him — bit of absurdist fluff mocking Wisconsin Supreme Court Justice Louis Butler for a comparison that had arisen between Butler and U.S. Supreme Court Justice Antonin Scalia.

In a textbook demonstration of Proverbs 16:18, McIlheran wrote that one need only be "minimally sentient" to understand that the comparison is "towering nonsense."

The ironic truth is that McIlheran's manifestly supercilious pronouncement applies perfectly to his own ill-informed scribblings.

As I pointed out to McIlheran at the time,

Butler's approach in [State v.] Jensen is very similar to that of the most conservative members of the U.S. Supreme Court. It's a near-classic example of a very narrow reading of the text supported by an analysis of the original intent behind the Confrontation Clause.

In fact, that is one of the reasons why SCOTUS will very likely rule for the defendant/appellant in Giles v. California, a case that presents the identical question of constitutional construction that Butler addresses in his Jensen dissent.

I directed McIlheran to my own discussions of State v. Jensen posted here and then offered to bet McIlheran that Justice Scalia would adopt precisely the same approach in Giles as had Justice Butler in Jensen.

That Giles presents the identical constitutional question Justice Butler had addressed in his lone dissent in Jensen:

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?

The Jensen of Jensen, it may be recalled, is Mark Jensen, who was convicted of first-degree intentional homicide for the murder of his wife, whom he poisoned with antifreeze.

McIlheran declined the wager, perhaps realizing that his March 28 blog post was nearly as foolish as his earlier celebrated uncritical acceptance of this laughable characterization of Jensen:

[Justice Butler] wanted looser standard than other justices on allowing hearsay; standard preferred by Jensen's attorney

On Tuesday, the U.S. Supreme Court heard oral arguments in Giles v. California. As Lyle Denniston at SCOTUSblog — who has forgotten more about the law than Patrick McIlheran and the demonstrable liar who wrote the ungrammatical nonsense indented directly above will ever know put together — reports,

Justice Antonin Scalia was the most fervent champion of Giles’ cause, suggesting that the Court in [an earlier SCOTUS decision] had interpreted “the meaning of the Confrontation Clause” as it was understood “when the people adopted it.”

And the meaning of the Confrontation Clause "when the people adopted it" is exactly at the core of Justice Butler's reasoning in State v. Jensen. The complete transcript of the SCOTUS oral arguments is archived here (.pdf; 60 pgs.).

During the oral presentations, Justice Scalia takes pains to distinguish an exception to a hearsay rule of evidence known as the "dying declaration" from the requirements of the Confrontation Clause, which he calls "a totally different situation," precisely as Justice Butler had done. Throughout the oral arguments, in classic Scalia fashion, Scalia helps along the lawyer arguing for the defendant, Giles, and gives the attorney representing the State of California an extremely hard time ("siding with criminals"?).

Even Patrick McIlheran should be able to see this, since he claims to have been "minimally sentient during some portion of Scalia's years on the bench." I beg to differ, but I'll give him the benefit of the doubt in this case. Of course McIlheran himself may be "minimally sentient," but the said minimal sentience has little to do with understanding comparative jurisprudence generally or in particular the close parallels between Justice Butler and Justice Scalia's reasoning pursuant to the meaning of the Confrontation Clause.

McIlheran's fatuous yet arrogant commentary is a perfect example of the mis- and disinformation spread by a number of undeservedly prominent and irresponsible Wisconsin media chumps and other alleged "journalists" during the State Supreme Court election campaign — not to mention by Mike Gableman and his direct handlers and enablers themselves — and we have them all to thank for that "stellar example of democracy in action" whereby roughly 9.6% of the State's registered voters rid the other 90.4% of one of the smartest appellate court judges in the country. As smart as the beatified (and not in the Jack Kerouac sense) Antonin Scalia, it would appear.

And they're actually "proud" of it, evidently in the Proverbial sense.

eta: It looks as though April 24, 2008, is Let Us Now Celebrate the Wisdom of Patrick McIlheran Day in the Wisconsin blogosphere:

Taking Pro-Life to the X-Treem

Patrick McIlheran loves DDT

McIlheran v. People of Earth

And even a wistfully touching defense:

We can't all be Nino [Scalia]

McIlheran interviewed a hand-selected conservative GOP hackette named Kellyanne Conway? Oh well, then; I take it all back. :rolleyes:

By the incompetent, for the competent

I got this comment from the ubiquitous "anonymous" in alleged response to my post here the other day:

"Rather than accept the will of the people you now want to deprive the people of their right to vote."

Where did I say I didn't accept the "will of the people"? Of course I accept the "will of the people." That's the whole problem.

One of the provisions of the Wisconsin constitution reads, "Laws may be enacted excluding from the right of suffrage persons adjudged by a court to be incompetent or partially incompetent."

All we need to do is adjust the definition of incompetence somewhat. And even then, we don't have to adjust it all that much, because such persons would be excluded from voting based on a showing of mere partial incompetence.

It needs only be adjusted enough to exclude, for example, persons who actually believe that Charlie Sykes is telling the truth. Because if you don't have the wherewithall to make that simple determination, then you're practically within the purview of the legal definition of competence as it stands, which refers to the ability to tell right from wrong.

Determinations of incompetence, in the legal sense, seek to adduce some degree of mental infirmity or incapacity. Years ago I helped a friend of mine coach a hockey team of so-called incompetents. They were a bunch of young men with Down Syndrome and other forms of what we used to call mental retardation. Incompetent? I think not. For one thing, they were about the sunniest, most carefree gang of human beings you ever met. Until they got on the ice, when they became as like one of those multi-elbowed subcontinental deities but with the head of Gordie Howe.

I can't say whether they knew the difference between right and wrong, according to the legal sense of competence, but they knew the difference between hockey and not-hockey. And for Canadians at least, that's far more important.

For plenty of Wisconsinites, too. The laws of statistics dictate that of the 100% of attendees at Milwaukee Admirals or Wisconsin Badgers games, only 19% of them voted on April 1. Less if they drove up from Illinois, where they're forced to endure the Chicago Blackhawks.

Besides, you want incompetent? Check out this column by another of Milwaukee's medium wave chuckleheads:

Butler, a former public defender, is such an extremist on the rights of criminals that he has been dubbed "Loophole Louie" in reference to his willingness to overturn convictions.

Mark Belling should be excluded from suffrage on the strength of that slice of rampantly fallacious idiocy alone. And anybody who reads that while nodding blithely in agreement clearly doesn't know the difference between right and wrong either. That's incompetence.

What's that you say? The legal definition of competence embodying the ability to distinguish between right and wrong is a reference to morality and not the competence to make factual determinations? Well, sorry about your luck, but you're probably the same people who criticized a Butler teevee ad depicting Justice Butler as "doing what's right," so you can't have it both ways. Furthermore, the objections to that ad were misplaced as a matter of the philosophy of law, but that's a subject for another day and another post.

Moreover, how does one get to portray as an indication of the "will of the people" only 19% of them bothering to exercise their right to suffrage? It seems to me that the "will of the people" is better expressed by the 81% who didn't vote because they didn't care, or didn't even know there was an election on April 1. If 81% of registered voters don't care enough to vote in the first place, then how could they possibly object to an effort to ensure only the best and smartest judges sit on the State's highest court of appeals?

Chances are good they wouldn't care about that either anyway.

Anonymous goes on, quoting the Gettysburg Address of all things, which was uttered by a U.S. president who represents near-anathema to proponents of so-called "States' rights," to jabber some nonsense about "liberals." Even as things stand, elections to the Wisconsin Supreme Court are supposed to be non-partisan. Last I checked, the Wisconsin Supreme Court Rules are part and parcel of the Wisconsin statutes, which are themselves a direct expression of the "will of the people," enacted as they are by the popularly elected legislature.

I regret to say that even anonymous her-/him-/itself would be swept within my proposed adjusted definition of competence, if not the existing one. This is the reason I moderate comments here, to generously protect persons adjudged to be embarrassing themselves publicly. But occasionally I slip up and let one through.

Yeah, I'm an elitist. So what?

Marquette Law School Prof. Rick Esenberg did not deliver his best work to the Milwaukee Journal-Sentinel's Crossroads section yesterday. "Half-hearted," is how I'd charitably describe it.

If I were allowed to read between the lines, I'd say that Prof. Esenberg is nearly as revolted at the most recent State Supreme Court election as I am. The only reason I say "nearly" is because he received the reward he sought: the replacement of one of the smartest and most highly regarded judges in the country with a de facto and de jure Homer Simpson.

I also have to wonder if Esenberg actually voted for Mike Gableman or, like my piano student James, did the right thing but held his breath for the wrong outcome. At least, that's what I told James he'd done. (He laughed; James also has a sense of humor.)

It's impossible to take seriously Esenberg's portrayal of the two candidates as "reasonable lawyers with deep philosophical differences," as if there were comparable records from which to draw this implied equivalence of competence. Was Esenberg even paying attention? The only thing we ever heard from Gableman was the same old tired, empty GOP namecalling, of himself as a "textualist" (all judges are textualists — what, do you think the law is written in ham sandwiches?) and Justice Louis Butler an "activist" who decides cases in advance based on personal whims.

In other words, meaningless and — more to the point — baseless and indefensible rubbish. If Gableman has a philosophy, or is capable of enunciating one, or even knows what a judicial philosophy is or what it means to have a judicial philosophy, then maybe Prof. Esenberg can fill us in. But he certainly wouldn't be getting any of his impressions from Gableman himself. All Esenberg would be able to do is criticize Justice Butler's extensively documented jurisprudence and then claim Gableman represents his opposite number. Which is essentially all Esenberg has been able to muster in the first place.

Esenberg's anecdotal allusion to Ted Kennedy's goofball performances at Senate Judiciary Committee hearings on federal court nominees is every bit as unconvincing. Hardly anybody takes Kennedy seriously in that context. More the norm — or at least the ideal — is Arlen Specter's justly celebrated grilling of Robert Bork, which Ronald Dworkin described as one of the most compelling examples of American democracy in action.

And contrary to popular Republican "wisdom," Bork borked himself; it wasn't Ted Kennedy who borked Bork. That pesky Indiana law review.

Or how about the repugnantly obsequious tongue-bathings of GOP committee members like Orrin Hatch or — the worst of the worst — Jeff Sessions, whose inquiries of G.W. Bush judicial nominees elicit about as much probative intellectual content as asking the prospective Article III judges for their favorite brownie recipes, and then to comment approvingly on their own magical deliciousness.

As a newly minted supporter of a Wisconsin Supreme Court appointment process, even I'm willing to put up with those sorts of vacuous charades.

American democracy, let us recall, is decidedly not of the direct variety. The only body the Framers of the Constitution allowed for direct election was the House of Representatives, and even then only for two-year terms, because the Framers understood that the mob's inflamed passions would compel it to turf its representative yahoos out of office almost as quickly as it had installed them. And inflamed passions are the antithesis to the rule and the process of law.

The power of incumbency (a.k.a. hockey socks full of cash contributions stuffed in exchange for obeying moneyed interest groups) has changed all that for the most part, of course.

The call for the appointment rather than the popular election of judges inevitably invites catchy GOP charges of "elitism" from those who would prefer appellate courts empaneled with Homer Simpsons and Fred Flintstones. Bring on such charges, I say. Of course it smacks of elitism. Our highest appellate courts are supposed to be comprised of the elite. They are the elite. Anybody from Plato to Thomas Aquinas to James Madison and Alexander Hamilton (the poster boy for American political elitism) can tell you that.

Or Thomas Frank, whose What's The Matter With Kansas? Esenberg also disparages yesterday (without explaining why). Frank shows exactly how conservative caterwauling about "liberal elitism" is a fatuous joke and in fact a ridiculously embarrassing false pretense to political and cultural victimhood on the part of conservatives.

By close analogy, witness the disingenuous howls of persecution by American Christians, 85% of the population, driven back into their caves like the Essenes by a handful of atheists, many of whom are reluctant to identify themselves as such for fear of being scorned and shunned to the detriment of their very careers.

Ultimately, Prof. Esenberg's vaguely Churchillian thesis appears to be that popularly electing our State Supreme Court is the least worst option available. He can't possibly be serious, especially while at the same time declaring that he loves the law (which I don't doubt for one instant).

For one thing, an appointment process will have the meritorious effect of excluding the Mike Gablemans from our highest courts of appeal. That alone is enough to commend such a process. The strange case of Harriet Miers aside, does anybody seriously think the likes of Mike Gableman would be mentioned in the same breaths as the likes of John Roberts or Samuel Alito, even by Karl Rove?

Obviously a method of appointing — as opposed to the popular election of — judges will not erase the political content of the selection process. Who ever said it would? And what isn't political in this country? One of the reasons I got a law degree was so I could better understand the daily newspaper. Everything is political here, and all politics ultimately rests on some legal question.

And conservative Republicans needn't be concerned they'll be forbidden from engaging in precisely the same lobbying of a judicial selection committee with which they're able to insult the public's intelligence now. Happily, Wisconsin Manufacturers & Commerce will still retain its ability to micturate all over the Bill of Rights.

I have no idea what success State Rep. Frederick Kessler's proposed constitutional amendment will enjoy, if any. But, given the experience of Wisconsin's latest Supreme Court election, I wouldn't be able to bring myself to not support it.

Speaking as someone who also loves the law, the election was a shameful affair, and one can only pray it never happens again. Even I will pray, to Saint Thomas Aquinas, if that's what it takes.

CFAF "deemed" criminally inept: Part 11

As promised — or, depending on one's perspective, threatened — the next entry in that which has now become what singer/songwriter Paul Simon, in his most severe bowl-haircut days, might have called "a simple desultory philippic." We last left off at the Coalition for America's Families [sic] (CFAF) case 60., State v. Stuart.

I'm going to skip the next case, State v. Richard A. Brown, just because. I figure if CFAF can simply arbitrarily and capriciously exclude it from "its" list of cases, which it did, then so can I.

Unlike CFAF, however, I will get back to it.

If there is any justice or truth, then CFAF these days is hiding its collective head in abject shame. Not so, incidentally, for CFAF's leading cheerleader, chief helper-elf in legal analysis and statistics, and alleged "journalist," who has lately taken to not just lying, but lying through her teeth, rather than check up on a handful of easily verifiable facts. And this is apparently what they're teaching in university Reporting 101 classes nowadays. Given the choice, I'm inclined to humor, but that's just sad. Profoundly so.

So evidently in certain quarters, there not only exists neither justice nor truth, there exists in their stead a willful, deliberate, and determined effort to avoid both at any costs.

On a less serious but equally pathetic note, the next case, State v. Hale, is the final case on the list of 62 Wisconsin Supreme Court decisions that CFAF appropriated from the Butler campaign upon which to perform its extravagant litany of nefarious hijinks.

I quote directly from the CFAF document in my possession:

There are 6 cases missing from [the Butler campaign's] analysis, a yes is where CFAF deems Butler w/ the criminal.

Thereupon follows, I kid you not, the names of seven cases. How manifestly not surprising and what a classic examplar of CFAF's relentlessly desperate fumbling and bumbling. As I've observed previously, you simply cannot make this stuff up.

62. State v. Hale 2003AP417-CR

Rick Esenberg of Marquette Law School wrote recently, "[She] says that she has the 'against' and 'for' numbers. Let's take her at her word." The statement is by turns astonishing and laughable. State v. Hale is yet another fine example of why.

Hale contains five separate opinions: the majority opinion by Justice Bradley, and concurring opinions by Chief Justice Abrahamson, Justice Wilcox (joined by Justices Crooks and Prosser), Justice Prosser (joined by Justices Wilcox and Roggensack), and Justice Butler.

When judges write concurring opinions, it means they join the majority opinion's central ruling, which in this case was the unanimous affirming of Hale's three criminal convictions, but they would have reached that result through different reasoning, based on their interpretation of the underlying numerous and varied legal questions that lead to the result.

I don't mind admitting that it would probably take me at least two days of close analysis, research, and writing to tease out each separate legal question from Hale (and there are many other multi-opinion examples like Hale) and assign each judge's disposition on each question as either "pro-defendant" or "pro-State." And, even then, such assignments would be subject to reasonable review and objection from the likes of Rick Esenberg. Moreover, he would still need to present his own analysis as to why any such assignment was misapplied by your humble reviewer. And then rebuttal and so forth.

At the same time as imploring us all to take a demonstrable prevaricator "at her word," Esenberg has himself suggested a number of alternative denominators — other than the criminal convictions themselves — by which "for" or "against" the constitutional rights of criminal defendants might be assessed. Some of these suggestions certainly have merit.

But if somebody imagines that the prevaricator in question — or anybody — could have performed a similar task on 70 decisions in two days, well, then that somebody needs their head examined, not to put too fine a point on it (or on the examined head).

To be fair, Esenberg did at least distance himself from the term "pro-criminal" at one point during his series of discursive academic vacations before allowing, "I think someone tried very hard to get a very low number and may have allowed that desire to get in the way of his or her better judgment."

One might accept this as the Understatement of the Millennium with respect to both CFAF and its helpful elf's now-thoroughly debunked projects, but Esenberg was referring to the Butler campaign(!).

It's abundantly clear now that the Butler campaign did not "cook" any number. The cooking, frying, baking, basting, broiling, barbecuing, and sauce-reductioning occurred entirely in the comedy kitchens of CFAF and its prevaricating elf.

If the Butler campaign committed any misstep at all, it issued from Justice Butler himself during his interview with the Milwaukee Journal-Sentinel editorial board when he said, "I voted to uphold the convictions 75% of the time." I recall immediately thinking, on hearing this, 'Wait until Esenberg gets a hold of that one, he'll be on it like a dog with a bone.' Which is exactly what happened.

What Butler should have said — and I'm fairly certain, without even asking him, what he meant to say — was that in 75% of the cases involving criminal convictions, his vote did not disturb the existing conviction, which remained completely intact. And that is correct to within less than two percentage points, as I've shown, through my laborious presentation of each individual case to which Butler was making reference.

"Laborious," incidentally, is a reference to the impositions made on the kind reader, and not to those happily engaged by the writer.

Nevertheless, CFAF didn't "deem" State v. Hale "w/ Criminal," but rather passes it by without comment.

Thus ends the list of cases that not only couldn't CFAF produce itself, instead relying on material produced by the Butler campaign, it manipulated and twisted and otherwise transparently schemed and scammed the cases into confirming beyond a shadow of any doubt its own sleazy machinations informed by profound incompetence: its own and, as it turns out, that of its helpful prevaricating elf.

Considered separately, sleazy machinations and profound incompetence are bad enough. But profoundly incompetent, sleazy machinations are a quite remarkable addition to the panoply of preexisting "family values." A remarkable and singularly unwelcome addition, in my own considered estimation.

I'll get to CFAF's remaining seven (or is it six? Math hurts!) cases after State v. Richard A. Brown.

ttfn

Help prevent a tragedy — II

Continued from Part I ...

Remember Jeffrey Dahmer, who committed some of the most deplorable acts that anyone is even capable of imagining? So incapable of imagining, I suspect, that if Jeffrey Dahmer hadn't committed them, and people hadn't heard about them, then probably hardly anybody would have ever imagined them themselves? That Jeffrey Dahmer, right.

Well, even Jeffrey Dahmer had a criminal defense attorney. What entitled Dahmer to a criminal defense attorney is the United States Constitution, which Burnett County conservative Republican Mike Gableman's loudest and deepest-pocketed hooters and hollerers, Wisconsin Manufacturers & Commerce, calls a "needless technicality."

Which is funny, because WMC can get away with disgorging malodorous effluent like that because the United States Constitution allows it to, because political speech is arguably the most protected speech of all. So WMC can actually deliberately vomit and expectorate on the United States Constitution whilst claiming the very protections afforded to it by the United States Constitution. How's that for dramatic irony.

Lately, Charlie Sykes and his fellow one-trick caged orangutans are making much of the nickname that Wisconsin Supreme Court Justice Louis Butler earned when he worked for the State Public Defender 25 years ago. Sykes and Co.'s pick to replace Justice Butler, the barely coherent Mike Gableman, has for all intents and purposes made it the defining aspect of his definitively sleazy campaign.

Clyde Winter will tell you more, if you don't already know.

When many people hear that an attorney defended a child molester, they say, "Oh my god, he defended a child molester? How can anybody defend a child molester?!" But just because a lawyer defended a child molester, that doesn't mean that the lawyer defended child molestation. No, the lawyer defended the child molester's constitutional rights to a fair trial and a number of other specific protections enumerated in the United States Constitution.

Lawyers, in addition to most real humans, know what it means to "defend" the accused, or even the convicted, on appeal. They understand that even child molesters have constitutional rights. But those rights have more to do than with just defending child molesters, they also have to do with prosecuting child molesters, which is what we all want.

Furthermore, people who prosecute child molesters not only know that, but they know that the best defenders of child molesters make for the most solid and effective prosecutions of child molesters. Because a good defense lawyer makes the prosecutor work hard to prove her case. And the best prosecutors want to work hard to prove their case because they want to do good work. And the best defense lawyers make the best prosecutors do their best work.

On the other hand, the last thing prosecutors want to face is a bad defense lawyer. Because the bad lawyer forces the prosecutor to work hard too, but in those instances that hard work is not good hard work, it's annoying and frustrating hard work, and, most importantly, inefficient hard work, which makes for potentially the least effective prosecutions.

Because prosecutors have a big caseload, and they want to devote their best, hardest work to all of those cases. And they can only do their best, hardest work when a good defense lawyer forces them to. And that's what prosecutors want. Prosecutors take pride in their work, just like every other self-respecting, hard working attorney.

Nobody knows that better than Dodge County District Attorney Steven G. Bauer, who actually withdrew his support for Mike Gableman. Not only that, but DA Bauer announced in print that he wouldn't even vote for Mike Gableman. Because DA Bauer knows the score, and he knows how the system works, and he was revolted by the way that Mike Gableman and his lieutenants were misrepresenting that system, and especially distorting the role that people like DA Bauer play in that system, not just Louis Butler's former role in that system, as a public defender 25 years ago.

You may find an equally good argument against the candidacy of Mike Gableman, but I bet you you can't find a better one. And DA Bauer stated it, right out there in the public press, as forcefully and as eloquently as anyone could have. And I don't care whether DA Bauer is a conservative Republican or a card carrying member of both the ACLU and PETA. That doesn't matter one bit. Because he nailed that sucker, and what he wrote is a powerful indictment of the disgraceful campaign Mike Gableman has run, and is running, in his quest to appease his monied backers and quasi-intellectual supporters.

Think about that. When Louis Butler was a public defender 25 years ago, he earned a nickname that wasn't just complimentary and in recognition of his skills as an attorney, that nickname contained a little needling joke, because Butler was — and continues to be — held in the highest esteem by his colleagues and peers.

Because if his colleagues and peers wanted to needle Louis Butler in an uncomplimentary way, they would have needled him in private, not in public, and not even in Justice Butler's presence. Trust me on this. So really, that particular nickname, containing as it does an element of good-natured needling, is a double-plus-good compliment.

And think about that when you're considering the idiotic simian jabberings of Charlie Sykes and his pals among the Wisconsin Manufacturers & Commerce crowd.

Not only are they missing the point by an astronomically wide margin, they're parading their fundamental ignorance for all to regard. But that's their job, and it's a free country, and everyone's entitled to make a living.

But that's not the reason Sykes and the rest are playing on Butler's nickname. They're weaselly, but they're not stupid. They're playing on it because they know that a lot of people don't quite get the substance, and the meaning, of how the nickname came about in the first place. So essentially what they're doing is exploiting people who may not know any better for political goals. That's right, they're exploiting people for their own selfish purposes.

And, I can't help thinking, a lot of these people who are exploiting other people will at the same time tell you that they're religious, and devout, and righteous, that they're followers of a man who dedicated — some will tell you gave — his life for propositions entirely at odds with the idea of exploiting other people. Think about that.

Louis Butler is one of the smartest and best judges in Wisconsin. Having recently plowed through dozens of Butler's written opinions, there is no doubt about that. And he's not just one of the smartest and best judges in Wisconsin, I'd argue he's one of the smartest and best in the country. Mike Gableman is ... well, unfortunately, Mike Gableman. Gableman's entire campaign has been premised on falsehoods and personal attacks intended to tear down the personal and professional integrity of a good man. It's clear he could only fail spectacularly on that account. And it's equally clear that that's the best he could come up with.

What is certain is that Mike Gableman has definitely earned one thing. He has earned your best efforts to get to the polls tomorrow, Tuesday, April 1. And the reason why Gableman has earned those efforts is not so much so you can vote against Gableman, although that certainly is a major consideration, given the contemptible conduct of his political campaign.

The main reason that the effort should be made is to vote for Louis Butler for the Wisconsin Supreme Court, so he can return and continue the public service he has been performing for the last 15 years, which is as a judge that plays it straight down the middle, meting justice where it is warranted and required by law, and not in response to any third-party monied interests or out-of-state concerns that are shamelessly trying to outright buy our courts.

The choice could not possibly be more obvious, or simple.

CNN gets it partly right

A conservative [Republican] group, Coalition for America's Families, ran its own spot criticizing Butler for writing an opinion overturning [a] rapist's conviction. The group also claimed he had "sided with criminals nearly 60 percent of the time," a statistic it has not substantiated.

The missing right part is that it's deliberately fabricated bullshit.

Link to CNN report.

Help prevent a tragedy — I

I'm doing my part. And I'm not talking about this here blog, which has been pretty much devoted since December to debunking as many misrepresentations and falsehoods emanating from Burnett County conservative Republican Mike Gableman's election campaign and its supporters and professional apologists as was humanly possible.

Of course, some people are beyond all hope. An otherwise respectable local conservative blogger announced this morning he was voting for Gableman based on Gableman's "honesty." File that one under 'lost cause.'

Another said, 'I don't care if Louis Butler is a cross between Antonin Scalia and Solomon and Mike Gableman rode the short bus to Hamline Law School, I hate Jim Doyle so I'm voting Republican.' Parse that.

But I caught one yesterday, and in person. I have been teaching piano in Milwaukee two days a week for more than four years. A gentleman named James was my very first student here, and he's with me to this day. He's both highly motivated and dedicated, the perfect student. I can't recall him missing more than two or three appointments. I don't know all that much about James but I know he's a great guy, and he's becoming a pretty good pianist.

James, who I'm guessing is in his early 50s or so, had never played an instrument in his life before we met. He's long since taken to selecting his own music to read and learn on his own, often hymns that he plays at his church. (I had to encourage the hell out of him to do that, because he was nervous about performing in public, but I understand he's been a great success there.)

Lately we've been working at learning how to play out of what we call "fake books," which notate only the one-line melody of each tune, accompanied by chord symbols. They're a very basic representation of each song, and you need some theoretical and analytical skillz to realize each tune's performance. To my unending delight, James has taken a keen interest in music theory and jazz composition, two topics about which I could ramble on forever.

Whenever he starts learning a new piece from his fake book, he reads through the chord changes and marks each one with the Roman numerals musicians use to analyze the harmony. It's outstanding that he does this. James is one of my favorite piano students of all time, and I'm extremely, extremely proud of his achievements.

At the end of our weekly session yesterday, I told James to make sure he votes on Tuesday. He turned to me and said, "Oh, don't worry, I can't wait to vote against Louis Butler."

"Wait a minute, James," I said, "What?" And I am not exaggerating much when I say that James told me that Justice Butler was dedicated to shutting down all business activity in the State of Wisconsin and releasing every child molester onto the streets.

"James," I asked, knowing full well the answer, "Where in the world are you hearing this stuff?" "Charlie Sykes," came the depressingly predictable reply. "Hang on James," I said, and went to see my next waiting student to refund his money, because I was going to be a few minutes. Fortunately that young fellow travels with James, a really cool kid who I think some friends at James's church have adopted.

"Okay, James," I said, returning to my studio and closing the soundproof door, because I anticipated doing some yelling. "Tell me exactly what you've heard Charlie Sykes saying about Louis Butler. Everything."

I must say James had learned quite a bit from Charlie Sykes, and described some of the details of several of the cases Justice Butler has participated in fairly accurately. James was also disturbed by Sykes's incessant and idiotic harping at Justice Butler's ancient and complimentary nickname, earned more than two decades ago in a completely different context and capacity.

For the next 25 minutes I carefully debunked each and every one of Charlie Sykes's falsehoods. I talked about State v. Knapp. I talked about Butler's lone dissent in State v. Jensen and the likelihood of Butler's complete vindication by the most conservative members of the U.S. Supreme Court later this year.

I talked about products liability, and how Americans at least deserve to have access to the courts to try and make their cases when manufacturers market consumer goods that cause people to be injured or killed. Those same businesses shouldn't be allowed to buy the courts, and voters like James can easily stop them.

Most importantly, however, I talked about the genius of the United States Constitution and the Bill of Rights and specifically the Fourth, Fifth, and Sixth Amendments and how they afford protections to all Americans and not just to those under investigation and prosecution for crimes by the government.

I told him about Mike Gableman's campaign and, using a number of very specific examples, described to James that Gableman has been waging the most blatantly partisan and underhanded and despicable election campaign quite possibly in the history of Wisconsin.

It must have been a decent speech, because James left my studio promising to vote for Justice Butler and, almost equally importantly, against Mike Gableman. James trusts me, and he knows that I would never steer him wrong about the American system of constitutional democracy, and the role of the courts, and yes, even the role of public defenders in the adversarial legal scheme.

Because James knows I would never steer him wrong about music theory and harmony, so I certainly wouldn't bullshit him when it comes to the foundations of this ingenious and successful experiment in democracy and freedom.

Unlike Charlie Sykes, who would, and will, and does.

So, many thanks James, my man, and I'll see you next Sunday. Far from regretting the vote you cast tomorrow, you can be as justly proud of it as your touching version of Richard Rodgers' My Funny Valentine that you learned to play for your daughter when she was visiting from out of town that one time. Trust me on this, brother.

And a word for Charlie Sykes. I understand you're given to bellyaching about the state of education in this country. If you really do care for that, then you'd best stop poisoning the minds of my own most valued and decent students with your insidious, vicious lies.

Continued ...

More sleazy CFAF innuendo

Stacy Forster reports on CFAF's latest robocalls.

Talk about desperate. I understand politics well enough and cheating and lying is pretty much expected, I suppose. But cheating and lying while pretending to be some righteous "family values" outfit is just despicable. How can anybody condone, let alone repeat, such trash.

CFAF's rampant scumbaggery is akin to spitting on the Constitution.

CFAF "deemed" criminally inept Part 10

The following is relatively brief, since there remain few points of disagreement between CFAF and Justice Butler's lists, yet the ones that do remain are as goofy and negligently inept as any of those preceding, if not necessarily quite as reprehensible. And even in those instances, I pledge to keep my observations brief, since I've pretty much already said all that needs be said.

Furthermore, if I haven't convinced you yet of my two theses, (1) that CFAF's (and that of at least one other) entire project is a phony and disingenuous house of GOP cards erected on rotten stilts and (2) that statements from the Butler campaign further to the question of Justice Butler's recorded disposition in cases involving currently and formerly designated offenders are substantially correct (in fact, to within less than two percentage points, even if you add two cases to Butler's list of 70 that have purely to do with sentencing questions and nothing to do with either convictions or even procedural issues related to the convictions at all) then not only should I give up now, I should have given up long ago. But I started the job and I intend to finish it.

I take care to stress that last proposition in any event, just in case any potential employers and/or clients have been stopping by for a gander, in which case my little series may hopefully be the most elaborate job application and résumé ever constructed in the whole history of biological evolution on our fair and fertile planet.

Thus, as we say in this great and privileged State of the Union, Forward!

51. State v. Raye 2004AP770-CR

Justice Butler joins in its entirety another unanimous opinion reversing a drunk driving conviction. No concurring opinions are issued; in other words, Butler is in complete, unequivocal agreement with the most "conservative" members of the court.

CFAF, having disgorged nearly the entire contents of its briefcase full of trickery, assents.

At what point do we get to call CFAF and Friends, "Loophole Republicans," by the way? A long, long time ago, I reckon. Except in another ancient context, it was as a compliment. So scratch that idea.

52. State v. Wagner 2003AP1878-CR

Another terse, per curiam opinion of the court dismissing Wagner's petition for review of the court of appeals decision, which had affirmed his judgment of conviction in the circuit court for armed robbery. CFAF once again desperately seeks to remove an example of Justice Butler's ultimately "siding with law enforcement" simply because Wagner failed to make the case he had promised to make when the court originally granted review, called for written briefs, and even heard oral argument.

CFAF wants you to think that simply because the Supreme Court did not address the merits of whatever claim Wagner was making, that either his conviction was not effectively affirmed by Justice Butler and the rest of the court (which it was) or else was loosed by Justice Butler and at this moment outside lying in wait in your front yard hedge seeking to relieve you of your Karl Lagerfeld handbag at gunpoint.

Either way, CFAF can go pound sand you-know-where, and it's entirely legitimate for Justice Butler to count Wagner for the reason set forth above: The convicted defendant got nothing from any of the courts, including the one on which Butler sits, in the course of challenging his conviction. CFAF's goofball shenanigans do not even rise to the level of being a nice try. Oh, and, don't forget to check out the overwhelmingly significant -CR suffix beside the docket number.

53. State v. Moeck 2003AP000002-CR
54. State v. Anderson 2003AP3478-CR
55. State v. Reed 2003AP1781-CR
56. State v. DeLain 2003AP1253-CR
57. State v. Sykes 2003AP1234-CR

None of the currently interested parties disagree over any of the immediately preceding five cases, and a splendid family values-laden time was had by all.

Nonetheless, special attention is afforded the last of the five, arising as a contemplated action further to a certain identically-named defendant's repeated and ongoing intentional assault and battery against the Truth, the successful prosecution of which often figures prominently and occasionally causatively in the nocturnal emissions of local lefty bloggers.

58. State v. Trujillo 2003AP1463-CR
59. State v. Tucker 2003AP1276-CR

These are the two sentencing cases referenced above, in which Justice Butler wrote identical dissents. More correctly, the dissent in Tucker simply says, in essence, 'See my dissent in Trujillo.' Or is it the other way around. I don't remember. Because it doesn't matter anyway, again, as noted above.

60. State v. Stuart 2001AP1345-CR

See cases 53. through 57., inclusive. Won't you please kiss a family (values) member today (unless they're a conservative Republican, in which case, pretend you don't even know them).

Okay, that's enough for now.

Usinger's Bratwurst, meet Frank's Polish Kraut.

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To part 11 ...

Wigderson comes momentarily to senses

"Butler wins 55%-45%."

Jimmy the Wig handicaps tomorrow's field.

Developing ...

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.

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To part 10 ...

CFAF "deemed" criminally inept: Part 8

First, don't miss the very latest installment of

DA Mike Gableman: Real Life Adventures in Crimefighting

Now, nine more cases or, "Lordy, lordy, look who's a Moran."

[Psst. For a secret message to CFAF et al, click me]

32. State v. Booker 2004AP1435-CR

Two appealed convictions for showing porn videos to three girls ages 12, 13, and 14 both upheld by a unanimous opinion from Justice Roggensack, another of the court's most "conservative" judges. The "liberal" Chief Justice concurs but Justice Butler doesn't join her opinion, he only joins Roggensack's. CFAF is forced to agree.

33. State v. Brockdorf 2004AP1519-CR

Butler dissented, and joined another dissent by Justice Crooks, along with "traditionalist" Justice Prosser, in a case involving the investigation into a Milwaukee police officer, Brockdorf, and her statements pursuant to a shoplifting arrest that allegedly got a little rough 'n' tumble.

Even more troubling is that the heist was from Kohl's. I loves me some Kohl's. I've picked up a few nice IZOD rayon dress shirts at Kohl's for like 12 bucks. What kind of a shoplifter steals from Kohl's, when all he needs to do is rummage through the 70%-off rack to find such a deal? A lazy one, that's what! He probably deserved a good whack on the side of the head.

Anyway, Butler agreed with the police officer Vanessa Brockdorf that her statements made during an investigation were compelled, and should have been suppressed for that reason. Butler went on to set down a couple of paragraphs on the subject of trust between the public and the police, and how these investigations into rough play by the cops need to be especially careful and rigorous. It's a fair point, especially in this town.

Nevertheless, because he is honest, Butler counts this case "against" himself, despite the fact that the party Butler sides with is an actual law enforcement officer, yet another example of how these rulings contain a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration.

And, because CFAF doesn't challenge a single instance of Butler siding with a defendant, it's happy to agree with this one too.

34. State v. Smith 2004AP2035-CR
35. State v. Tiepelman 2004AP914-CR

And two more. In Smith, Butler and Prosser join the Chief Justice's dissent where the majority upheld a drunk driving conviction in the face of Smith's challenge against a juror where Smith alleged a conflict because the juror worked for the Milwaukee County district attorney's office. Coincidentally, Smith addresses the very question of objective vs. subjective tests that I discussed below.

Butler counts this case "correctly" "against" himself and CFAF rushes to agree.

In Tiepelman, Justice Butler again voted with the court's most "conservative" members to reverse a criminal conviction. Naturally, CFAF agrees, but you'll never hear CFAF or Jessica McBride refer to either Justices Prosser or Wilcox as "pro-criminal" on any particular decision. Ever. Such is cheap partisan hackery.

36. State v. Fonte 2003AP2097-CR

In Fonte, Butler voted with a unanimous court (minus Justice Crooks, who did not participate) to uphold — after the court of appeals reversed — Fonte's conviction for homicide by intoxicated use of a boat. CFAF can't not agree.

37. State v. Dubose 2003AP1690-CR
38. State v. Knapp 2000AP2590-CR

Two cases that have been already discussed in great detail here and elsewhere that there is no need to rehearse at this point, suffice to say that Butler voted to reverse a conviction in Dubose, and wrote to exclude evidence in Knapp where that evidence was the product of a deliberate withholding of the constitutionally guaranteed Miranda warning.

Contrary to uninformed opinion, there was anything but clear guidance from the U.S. Supreme Court in Knapp, and the two cases that local radio howler/monkey Charlie Sykes says Butler "ignored," Butler actually spent 46 pages of the opinion addressing. Because, you know, if you write anything less than 47 pages discussing two U.S. Supreme Court decisions in excruciating detail, Sykes gets to count that as "ignoring."

I pause to reflect one more time — Why does anyone take any of these right-wing bozos seriously at all, with outright lies like that?

In any event, Butler, gentleman that he is, nevertheless counts both cases "against" himself in deference to the stupid GOP games of CFAF, and CFAF certainly isn't going to raise any question against that.

Another pause to reflect. How is it that CFAF can agree with Butler's list in so many instances, and in every single instance where CFAF disagrees with Butler's list, CFAF is dead wrong, yet CFAF's figure is nearly 40 percentage points away from the truth?

Because, dear reader, CFAF originally extracted the number from its balloon knot pucker hole, that's why, and its pathetic attempt to justify it in the meantime is a stone flat-out Opéra Bouffe of lies, screw-ups, and general boneheadedness.

39. State v. Love 2003AP2255

This is a good one. CFAF just arbitrarily removes this from the list, saying, "Not Classified Criminal By The Court." Notice the docket number beside the case name doesn't contain the holy -CR suffix. Yes, and? Again, did CFAF even care to read State v. Love? Because it is a criminal case. Last I checked, robbery at gunpoint was a crime. And ineffective assistance of counsel is often a legitimate means to attempt challenging a conviction. And postconviction motions are a regular component of criminal cases. Even CFAF could tell if they looked, because it says postconviction motion. There are no convictions in any types of cases other than criminal cases.

Hmm, let's see, what other features are there of criminal proceedings. Jury trials? Check. Evidentiary hearings? Check. Reversals of the court of appeals that remand a case back to the circuit court for a hearing on the newly discovered evidence? Check. All of which figure prominently in State v. Love. In fact, the latter is the disposition: The defendant, says Justice Butler, writing for the majority, at least deserves a hearing — but that's all, just a hearing — on this newly discovered evidence. So ordered.

Now I'll admit, I can't tell you why the case number doesn't contain the -CR suffix. Maybe it has something to do with a reference to the court of appeals "summary disposition" in the very first sentence. Is that a term of art that alerted somebody working in the clerk of courts' office to file the case a certain way? I have no idea, to be honest. Maybe somebody can fill me in.

But, here's the deal. IT DOESN'T MATTER. Butler is being attacked, baselessly, on his criminal record, and now here are these buffoons insisting that Butler cannot defend himself against their attacks by making reference to the very cases they are using to attack him.

As Larry David said to Richard Lewis, "What are you, nuts?" Or, as the kids say, "Teh stupidz! It Burns!!!11!"

Oh well, as Jessica McBride says, even if you disagree with this one case it doesn't affect the overall number. No biggie; Tee Hee!

Huh.

Well how about if you disagree — and demonstrate why, with proof — with about 100% of CFAF's idiotically incorrect classifications, how does that affect the overall number?

Lordy, lordy almighty god help us all. Wonder why I'm amazed that an actual professor of law continues to laud McBride's work, which obtained the identical result as did CFAF's? There's another reason. I've lost count of those reasons at this point.

40. State v. Moran 2003AP561-CR

Another classic CFAF boner.

CFAF disputes this one: "deems w/ Criminal." Yes, it's true, you, the people, through your elected representatives in the State legislature, are "criminals." Okay, okay, wise guy. Never mind Glenn Grothman then.

Moran is a unanimous decision authored by Justice Prosser with two concurrences by Wilcox and Roggensack dealing with a postsentencing motion to obtain DNA evidence under a due process of law theory. The unanimous court addresses Moran's motion in light of a number of statutes passed by the legislature seven years after the events leading to the defendant's conviction.

In short, the unanimous court is directly following the commands of the legislature in granting the motion. Crimefighting superhero Mike Gableman, speaking in that strange half sing-song half vacuous-GOP-talking-point-reciting voice, constantly accuses Butler of "legislating from the bench" and imposing his personal preferences on the will of the people and blah blah blah. Has Gableman ever supported any of this? Of course not. Can it be easily rebutted, with examples? Of course it can. Just read State v. Moran.

As for the result in Moran itself, certainly even a conservative Republican would appreciate having the opportunity to present new evidence that came to light not only through recent technology but through more recently passed legislation by the peoples' representatives? Or do conservative Republicans really place such absolute blind faith in the government and its police force and prosecutors? Because if they do, then conservative Republicans have sure changed their attitudes toward the government since I was just a little clump of DNA meself.

ttfn

To part 9 ...