Still in custody 14 months later

As early as November 13, 2007, Gableman described a 2005 decision of the Wisconsin Supreme Court as "resulting in the release of the defendant into Milwaukee County." Today is February 12, 2009.

Updated.

Koschnick supporter slices the baloney thin

Via Xoff: Supporting, just not endorsing.

Aren't those synonyms?

"Strict constructionism," I guess that is.

Non-partisan Republican Party news

Jefferson County Circuit Judge Randy Koschnick's non-partisan Republican Party world tour continues with a gig in Appleton.

Meet the Republican stars.

Sounds ridiculous, doesn't it

"The principle that the Supreme Court has made clear is that school districts may not coerce students or students' family members to be exposed to religion at graduation," said Alex Luchenitser, senior counsel for Americans United.

Mega-church would expose students to "a very large cross"

'Well maybe it's about time some of those darn teenagers were exposed to a very large cross!' many will doubtless argue.

In addition, at past graduations, the church displayed banners reading "Leading Children to a Transforming Life in Jesus" and "Lord of Lords," and church personnel distributed religious pamphlets and other materials to graduating [public school] students and their families.

That's a fair bit dicier, them being a captive audience.

A strong grasp of the issues

I'm pleased to announce that the Milwaukee Journal-Sentinel has wisely joined me in endorsing my friend Michael Mathias for the MPS 4th District board seat. The primary election is this coming Tuesday.

I take back everything I said about them.

Visit: Mathias for School Board

Told you he'd be a barrel of laughs

Koschnick campaign person Seamus Flaherty, that is.

Koschnick still "unaware" of the law

In a January 29 interview with WisPolitics.com, Jefferson County Circuit Judge Randy Koschnick mounts his State v. Knapp hobbyhorse once again. On this ride 'round the circuit, his observations are especially remarkable.

Unfortunately, Koschnick's simplistic campaign pronouncements require a considerable amount of background explanation to rectify, so this is necessarily a rather lengthy post.

In a nutshell, Judge Koschnick is given to complain that only verbal statements obtained in violation of the Miranda warning requirement are to be suppressed at trial, and not physical evidence gathered as a result of those statements (or, in the case of Knapp, a nonverbal statement expressed by the suspect's pointing at a pile of clothes, which contained a bloodstained sweatshirt).

He suggests that his understanding reflects the current state of the law and that State v. Knapp is a lawless aberration: "activist" judges "legislating from the bench."

Not only is he mistaken but he contradicts himself, and here's why.

Responding to an astute question about what remedy is available to suspects who ultimately become defendants by dint of law enforcement's intentional violation of their constitutional rights, Koschnick unequivocally announces that such defendants should "Absolutely" be granted the suppression of physical evidence seized under such circumstances.

He goes on to distinguish among what he believes to be different constitutional rules which he supposes to have different effects than others:

JR Ross: The State Supreme Court ruling called it an intentional Miranda violation. [The State v. Knapp decision said] if there is an intentional Miranda violation, there must be some kind of penalty for the police, essentially. Just to play devil's advocate, if the cops intentionally violate somebody's rights, shouldn't there be some kind of consequence for that?

Judge Koschnick: Absolutely!

JRR: And so why is the remedy that [the Knapp court] prescribed, which was not allowing the bloody sweatshirt in [as evidence at trial] not an appropriate remedy?

JK: If the police violate somebody's rights by not giving a search warrant when it's required, or they violate somebody's due process rights, then physical evidence is normally suppressed as well. But the United States Supreme Court has been very clear that failure to read Miranda rights does not rise to the level of full-blown constitutional violation. And if you read the [State v. Knapp] decision carefully, you'll see that that distinction has always been in existence. And it is in existence to this day with the United States Supreme Court.

(Incidentally, JR Ross' excellent question strikes at the fundamental purposes undergirding Miranda v. Arizona.)

What Koschnick is evidently saying is that the Miranda warning is not, to borrow the actual parlance of the United States Supreme Court, a "constitutional requirement," unlike a search warrant or some particular, individual component of due process.

Therefore, if the Miranda warning was a "constitutional requirement," then surely its deliberate, intentional withholding would require the suppression of physical evidence so obtained, correct? "Absolutely!" says Judge Koschnick.

Intentional and deliberate

First of all, the crucial distinction in Knapp — which Koschnick conveniently never mentions — is that the Miranda violation was intentional and deliberate. This fact is undisputed in the record.

A meaningful understanding of Knapp is simply not possible without bearing that in mind, particularly in light of two of the U.S. Supreme Court cases, United States v. Patane and Missouri v. Seibert, which control the Wisconsin Supreme Court's decision in Knapp.

Secondly, on June 26, 2000, the United States Supreme Court decided in Dickerson v. United States that the Miranda warning was indeed a constitutional rule, and not just a "prophylactic" protection for the Fifth Amendment guarantee against self-incrimination.

On this question the Court was quite clear: Dickerson was a 7-2 decision, which is about as clear as you can get during the Rehnquist era, when 5-4 splits were much more common.

A prophylactic rule is understood separately from a constitutional rule. That is, a prophylactic rule is a rule meant to protect a constitutional rule. In effect, law enforcement may violate a prophylactic rule without violating the constitutional rule.

But in Dickerson, the Court announced that Miranda itself is a constitutional rule, not merely a protective, prophylactic rule.

As noted earlier at this blog, this is what Chief Justice Rehnquist wrote:

The Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision.
. . . The Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.

We disagree with the Court of Appeals' conclusion . . .

In other words, the Miranda warnings are constitutionally required. The Miranda rule is a constitutional rule, just the same as is, for example, any other component of what the Fifth Amendment calls due process of law, the intentional violation of which even Judge Koschnick declares "Absolutely" must result in the suppression of physical evidence.

And recall that Koschnick himself, as the presiding judge, ruled to suppress other physical evidence from Matthew Knapp's homicide trial on different grounds (although he was reversed by the Wisconsin Supreme Court on that ruling as well).

Less than clear. More like opaque.

Since Dickerson, the U.S. Supreme Court has been far, far less than "very clear." In Patane, three Justices — including Rehnquist — found that a violation of Miranda was not sufficient to exclude physical evidence. For the three, Justice Thomas wrote:

In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion.

But the Court didn't reach a definitive conclusion in Patane either; only those three Justices did. While two others agreed with the result in Patane, they only joined the plurality insofar as that result applied to the specific circumstances of the case. They declined to join Justice Thomas's broader discussion, and in so doing declined to join his broader conclusions.

And of course the remaining four Justices dissented altogether, four being a number greater than three (as even most lawyers know).

Furthermore, the facts in Patane were quite different from those of Knapp (which makes the cases distinguishable, as we say). Most importantly, the violation in Patane was neither intentional nor deliberate. The discussion by the plurality in Patane is limited to "mere failures to warn" and "negligent Miranda violation[s]."

Negligence requires neither intent nor deliberation. Negligence is but a failure to exercise reasonable care and the negligent violation of constitutional rights certainly may not require such remedies as the suppression of evidence at a criminal trial.

On that question the law most definitely is very clear.

Indeed, one of the two officers present "attempted" to Mirandize Samuel Patane, but Patane interrupted the officer, stating that he already knew his rights, and the Miranda warning was never completed. That's barely even negligence, if at all.

Seibert, on the other hand, did involve a deliberate and intentional withholding of the suspect's Miranda rights, but not the seizure of physical evidence.

Significantly, a majority of the Court in Seibert affirmed Dickerson's holding that Miranda is itself a "constitutional requirement," and not simply a prophylactic device meant to protect some other, separable constitutional requirement.

While only four Justices formed the plurality opinion in Seibert, as is often the case, Justice Kennedy joined that result but wrote separately:

We have held . . . that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane.

But recall that Justice Kennedy also wrote separately in Patane and limited his own conclusion to the specific facts of that case, where the Miranda violation was neither deliberate nor intentional.

Yet Judge Koschnick still believes that the United States Supreme Court's guidance on the question of whether physical evidence obtained further to a deliberate and intentional withholding of the Miranda warning is "very clear"? No, it isn't.

In fact, a majority of the U.S. Supreme Court has never directly decided that question.

The "new federalism"

Which brings us, ultimately, to Judge Koschnick's other criticism of State v. Knapp: that the Wisconsin Supreme Court, finding at best ambiguous guidance on the federal constitutional question, reverted instead to the Wisconsin constitution's corollary to the Fifth Amendment's Self-Incrimination Clause.

Returning to Chief Justice Rehnquist's opinion in Dickerson, one finds practically an open invitation for State courts to do exactly that:

It is beyond dispute that we do not hold a supervisory power over the courts of the several States. . . . With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution."

Moreover, when the United States Supreme Court vacated State v. Knapp, it did so not on the particular merits of Knapp, but rather it simply ordered the Wisconsin Supreme Court to revisit Knapp in light of its decisions in both Patane and Seibert and in so revisiting, remain consistent with those two opinions (which even between themselves are inconsistent: i.e., not an indicator of clarity).

And that is what a majority of the Wisconsin Supreme Court did.

Indeed, Justice Wilcox's dissenting opinion in Knapp is devoted almost entirely to admonishing the majority only for departing from the general reasoning employed in some prior State cases. Not a single word of his dissent addresses the distinguishing circumstances of Knapp — the deliberate and intentional withholding of the Miranda warning — from those previous cases.

Tellingly, however, Justice Wilcox takes pains to distinguish Knapp from both Patane and Seibert, and ironically, for the same reasons discussed above which show that the latter two cases provide insufficiently clear guidance as to the fact pattern in Knapp.

He also errs in attributing to "the Supreme Court" that "the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause."

As we have seen, this was the view of only three of nine Supreme Court Justices, not "the Court," and even then only as it applied to the particular circumstances in Patane, where there was a so-called "good faith" failure to Mirandize the suspect, as opposed to an intentional and deliberate one.

This should have become obvious to Justice Wilcox when he noticed that one of those three Justices, Rehnquist, was the author of Dickerson, which announced that Miranda is indeed more than simply a prophylactic rule, but rather a constitutional rule.

Irresponsible journalism

The point of all of this is two-fold. First of all, I believe we should expect from our candidates for the State Supreme Court at least a more thorough understanding of the cases they are using to criticize their opponents on the campaign trail, and that they shouldn't be entitled to a pass when they offer simplistic and misleading formulations of not only those cases but the underlying case law.

Second — and this derives from the foregoing concern — the press bears some considerable responsibility for this situation.

Following the first candidate's forum in Green Bay last month, headlines across the State shouted, "Koschnick accuses Abrahamson of judicial activism," and "Koschnick says Abrahamson favors criminal defendants" and so on and so forth.

Scarcely a word has been devoted to investigating the merits of Koschnick's "accusations," nor whether or not his characterizations of the law were even accurate.

Well, they aren't. Whether the press has the interest or the wherewithall or even the baseline competence to investigate more completely into the grounds (such as they are) for Koschnick's superficial Republican talking points, I can't say.

But it strikes me as both pretty irresponsible and a disservice to voters not to. We went through this last year and any pretense of merit-based selection to the Supreme Court was turned on its head.

Political candidates like Koschnick are well aware of reporters' unwillingness or inability to dissect and discuss complex legal questions and cynically exploit those shortcomings. That should be no way to gain positions on the State's highest court of appeals.

Kenny G tops chart ... of secured creditors

Muzak Holdings LLC files for Chapter 11 — NYT

Coincidentally enough

A Wisconsin tank-thinker recalls the storied* career of Milwaukee-born former Chief Justice of the United States William H. Rehnquist (who is hardly "forgotten" by anybody, incidentally):

Conservatives may have some gripes about some of the cases his Court refused to overturn (Roe v. Wade, Miranda v. Arizona), although Rehnquist personally dissented in many of the cases upholding those controversial opinions.

Well, no, actually. In fact Chief Justice Rehnquist authored the majority (7-2) opinion affirming Miranda in 2000, which just happens to be among the subjects of this here blog's forthcoming entry.

* One of the better ones concerns Rehnquist's penchant for crazy wide lapels and flamboyant neckties while working in the Nixon Justice Department, prompting the president's call to "Get me that clown, Renchburg." Rehnquist, C.J., later decorated his robe with a set of golden stripes, reportedly inspired by a Gilbert & Sullivan operetta.

Other tales of Rehnquist, however, are considerably less savory, in particular those related at both of his Senate confirmation hearings, having to do with his activities as a poll watcher in Arizona.

h/t WisOpinion.com.

Legislating from the grill

I heartily recommend WisPolitics.com's telephone interview with Jefferson County Circuit Judge Randy Koschnick, which is available as an .mp3 file at this link. In it, Koschnick continues scraping away at his signature (as in, only) campaign ramble about "activist" judges "legislating from the bench."

One of the examples he offers of same is Ferdon v. Wisconsin Patients Compensation Fund, a decision issued in April of 2005.

In Ferdon, a majority of the Wisconsin Supreme Court invalidated a State statute placing a cap on certain money damages in medical malpractice lawsuits on the grounds that it violated equal protection under the law as guaranteed by the Wisconsin constitution.

It's long been accepted that one of the roles of U.S. courts is to review the actions of the other two branches of government to ensure that they're complying with constitutional requirements and guarantees. If not, then down they go. Checks and balances, as many observers are inclined to refer to it.

(In this instance, the legislature responded to the court's considered guidance by enacting another, higher money damages limit.)

Koschnick actually complains that Ferdon is representative of "activism" and "legislating from the bench" because the State constitution doesn't say anything about medical malpractice.*

He then goes on to compare the legislative with the judicial branch, suggesting that the legislature is preeminent among equals by noting astutely that it's comprised of the people's representatives:

The Wisconsin constitution doesn't talk about malpractice caps anywhere. I mean, that is clearly judicial activism. The court is substituting its judgment for the judgment of the legislature. In effect, the court is stealing power from the legislature and stealing power from the people. It is not allowing the people's policy decision as enacted by the majority of our two houses to stand.

He doesn't say why the legislature is preeminent, probably because the three branches of government share the people's power; no one branch is just assumed to be preeminent. They play different roles.

Given that Wisconsin elects its judges, isn't the Supreme Court also comprised of the people's representatives? Of course it is.

And wasn't Ferdon a majority decision, in exactly the same way as was the majority decision of the legislature to impose an unconstitutional cap on certain malpractice awards? Of course it was.

And given that Judge Koschnick himself is running a political campaign to gain a seat on the Supreme Court and is relying on the will of the people to put him in it, how is the power he seeks any different substantively from the power of the legislature he claims is preeminent? After all, he's running as a representative of the people.

Surely not just because he says so. That would simply be "imposing his personal philosophy" on the function of government, as he puts it.

* Judge Koschnick also describes the burden of proof beyond a reasonable doubt as a constitutional "right," but I can't seem to locate any language to that effect in the Constitution either.

More later ...

Thanks for the laugh

I argue [that Wisconsin Supreme Court Chief Justice Shirley Abrahamson] invent[ed] law ... in the Knapp case.

Sadly, I must have missed that "argument," perhaps because Chief Justice Abrahamson didn't even write an opinion in Knapp, much less "invent" anything. The author of that completely baseless and ridiculously pretentious claim is the subject of this amusing Waukesha Freeman column by One Wisconsin Now's Scot Ross.

Sykes often seems [sic] ignorant

The Brawler listens so you don't have to.

Koschnick raises 38% of funds from own self

Xoff follows the numbers.

What perplexes me is, how in the world do you run a Statewide political campaign for more than three months on just $8,000?

Maybe Judge Koschnick's remarkable unfamiliarity with the law won't matter much anyway. He makes yet another startling revelation in this Jan. 29 interview with WisPolitics.com. More on that tomorrow.

A shibboleth for some well known writers

Best tattoo ever.

The Grand Old Non-Party

The Janesville (WI) Gazette, reporting on last night's Republican jamboree there, describes Jefferson County Circuit Judge Randy Koschnick as one of the "stars" of Wisconsin's Republican Party.

Koschnick is believed to be challenging State Supreme Court Chief Justice Shirley Abrahamson in an election April 7. Such elections are, according to the Wisconsin Revisor of Statutes, "non-partisan."

Judge Koschnick addressed the Party jamboree along with several other celebrated local Republicans, according to the Gazette.

"Look out Democrats," warns reporter Frank Schultz, who was apparently obliged to endure the festivities. "The GOP is coming after you." And Democrats, complained another of the stellar Republican Party luminaries, Rep. Paul Ryan, "run everything."

Yet a further brightly burning ball of reactive gas, State Party chairman Reince Priebus — fresh from dutifully rearranging his national Party counterpart's clerical accoutrements — proclaimed a return to "the Party of Lincoln once again."

The reference is to a 19th century American president who unilaterally suspended the constitutional right of habeas corpus (which only the United States Congress is constitutionally empowered to do, as most "strict constructionists" are aware).

Meanwhile: "Judges must not only be fair, neutral, impartial and non-partisan but also should be so perceived by the public," wrote all seven Wisconsin Supreme Court justices in December, 2007.

Last week, Judge Koschnick was the toast of another GOP shindig.

Ratzinger faces infallibility challenge

Re-excommunicate Holocaust denier, say German bishops:

Williamson, a Briton who now lives in Argentina ...

Cor blimey, what a dead giveaway!

Axis IV: Severity of Psychosocial Stressors

Event: A local conservative blogger, stressed into righteous panic and frenzy by Will Ferrell's ersatz Bush penis, predicts Obama will bring his wife on a date to view the theatrical penis, and then also host a special party at the White House when the penis is broadcast on HBO. Naturally, Obama has absolutely nothing to do with any of it.

Diagnosis: Axis I Bush Derangement Syndrome is more correctly an affliction of Bush-deranged conservative Republicans projecting.

(For prior penis apoplexy, see here.)

Extraordinary

Liz Phair — Extraordinary
Juliana Hatfield — Universal Heart-Beat

Play loud.

For reasons only Jesuits understand

Mpeterson contemplates the insidious influence of heliocentrism.

The Chief's express straight talk

WisPolitics.com has uploaded a telephone interview with Wisconsin Supreme Court Chief Justice Shirley Abrahamson, conducted a couple of days ago. There's a whole lot of straightforward, common sense stuff on the business and role of judges, in particular her own.

And early on in the conversation, a number of entertaining (to me, at least) references to her opponent, Randy Koschnick, the Jefferson County circuit judge and non-partisan toast of the Republican Party.

Link opens .mp3 file directly (or right-click and stick it on your iPod).

The interview lasts for around 15 minutes.

Bankruptcy ends Pat Sajak's Cross'd Words

Route 15 rider Jason Haas laments.

Well, there were the Snuggies ads in Spanish.

Gun logic

Obama is going to take away your gun, so if you don't have a gun go and buy one now because when Obama comes to take away the gun that you didn't have, you'll have something to defend yourself with.

Gun sales spike amid Barry-fear.

Weekend abortion round-up

Needless to say, the University of Wisconsin-Madison's decision to undertake the business of performing (constitutionally protected) "second trimester" abortions is generating the requisite local hoopla.

That torch bearer of progressive social justice, Patrick McIlheran, leads the way, reminding you that you will be facilitating the killing.

The always dependably and amusingly unhinged State senator Glenn Grothman helpfully informs you that you are in fact and deed a murderer,* and bellowing medium wave harlequin Charlie Sykes cries CULTURE OF DEATH!!!1 at the top of his largest and boldest fonts.

McIlheran, wisely seeking legal counsel, provides a citation to Marquette law professor Rick Esenberg, who advises the university "may" be violating State statutes. He admits he has no idea whether it is or not, but some people find tautologies compelling, I suppose.

This one goes something like: There is a law, and if the university is violating it, then the university is violating that law.

"Right-wing guy" McIlheran presses forward by calmly predicting that unlicensed UW staff will soon enough be assassinating fully delivered babies and bagging them up in cardboard boxes labeled "biohazard."

Following which one of McIlheran's devoted disciples wishes another blog commenter himself could be an especially late-term abortion.

Welcome to the family planning "debate," where existence is futile.

At least nobody's mentioned "holocaust." Yet.

But far more interestingly, where is the Milwaukee Journal-Sentinel's rational antidote to Patrick McIlheran's barely contained ravings?

* Culpability by tax contribution, exactly the same justification as Osama bin Laden offered for the deaths of civilians on 9/11/01.

Lone activist judge overrules 70% of voters

Sick leave injunction granted — JSOnline.com

Not that it comes as any surprise (and nor will all the praise from conservative Republicans otherwise offended by judicial review).

Thus, no sick days for those sufferers of cognitive dissonance.

RIP Lux Interior

Those were the days. Survived by his wife of 30+ years.

Human Fly

I got 96 tears in 96 eyes

(Huh, there's a bootleg of that show.)

Koschnick "troubled" by argument schedule

So Jefferson County Circuit Judge Randy Koschnick says he finds it "troubling" that Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson was unable to attend yesterday's lunchtime judicial forum at the Milwaukee Bar Association.

Apparently she floated some lame excuse about hearing oral arguments, the dates for which are set months in advance.

Can you imagine, not conforming with Judge Koschnick's own personal schedule. The nerve. It's ... well ... "troubling."

I'm also a little surprised with the Wisconsin Law Journal's Jack Zemlicka, who had reported last week that "both candidates" would be appearing at the MBA although more evidence the Chief was unable to be present was posted for some time at the MBA's website.

Not only that but today's WLJ item is actually headlined, "No Abrahamson at second forum." But it's not a recent development.

We knew this ages ago. The fastidious chronicler of all things appellate Terrence Berres was probably on it sometime last year.

Even your own humble correspondent had mentioned it. If it's any consolation, I wasn't able to attend either. Far too busy being 100% pro-criminal and complaining to the Milwaukee County Clerk of Courts how "troubling" the calendars are to me personally.

Yet Koschnick claims he's more qualified than the Chief Justice.

Absolutely amazing. Still, two more months of entertainment.

The Grill Daddy* Chronicles

Cory Liebmann has some more on Judge Koschnick's phone records.

See also: "Non-partisan" candidate fêted at Republican shindig.

And: WI judge touts bogus AssGOP misappropriation accusations.

* Call now and receive a free beef thermometer.

GOP can learn from Taliban — TX Rep.

I'm not comparing the Republican Party to the Taliban, says Pete Sessions (R-TX), I'm comparing the Taliban to the Republican Party.

If his party's implosion continues much longer, he might soon be comparing it to another devout group: 40 years in the wilderness.

Americans prefer terrorist to Limbaugh

New poll shows. But Hannity slightly more beloved than Ayers.

Earlier: GOP pallin' around with El Rushbo.*

* Could there possibly be a more annoying nickname?

Interchangeable terms?

The Associated Press lead (or lede, as some prefer):

A religious leader has pleaded no contest to hiding a decaying corpse on a follower's toilet.

And the Milwaukee Journal-Sentinel's headline:

Cult leader pleads no contest to hiding body

It's one of those 'terrorist' vs. 'freedom fighter' things, I guess.

More Bishop Bushey here.

Koschnick may be "out of luck"

Are monied conservative interests throwing the Jefferson County circuit court judge under the bus, wonders Madison's Capital Times.

Rappin' with Appling

Julaine Appling that is, one of the fruitier nutcakes hovering at the furthest nut-right fringes of Wisconsin politics:

Thanks to an open records request, it's possible to note that a 36 minute call to [Appling's outfit, the Wisconsin Family Council] was placed from Koschnick's desk phone back on June 3 of '08. Whether or not the group will publicly endorse his run, it's certainly worth noting their interactions.

Just how nutty is Appling's fruitcakery? She wants otherwise peaceful, harmless, loving gay couples arrested and tossed in the county gaol.

With friends like these, etc.

More gruesome details via that indefatigable polymath, Emily Mills.

Koschnick's lead balloon

Super Id discusses product and criminal liability.

When Koschnick mentioned the case at last Thursday's candidate forum, the best he could muster was a five-year-old Wall Street Journal editorial. Turns out he doesn't keep up with the law, either.

Area GOP man basks in glory

The Chief finds it amusing that a local Republican functionary has been called up to facilitate the "transition" of incoming national GOP chairman Michael Steele. Emptying a desk drawer, presumably.

Meanwhile, Grumps takes note of Michael Steele's ridiculously fatuous hyperbole. In a related development, seasoned war correspondent Joe the Plumber offered his wise counsel to House GOP staffers as we witness the powerful Palin-Wurzelbacher 2012 ticket taking shape.

Over the weekend, Palin obsequiously stood in line to pal around with her fave terrorist paller-arounder at an elitist Washington function.

I don't get out of bed for $146.92

When the Wisconsin papers reported yesterday that Jefferson County Circuit Judge Randy Koschnick had raised $14,715 for his political campaign, what they neglected to tell you is that $9,995 of it was raised from . . . Jefferson County Circuit Judge Randy Koschnick.

Xoff with the scoop (once again).

Candidate Forum ● Wed. March 11

At the Newsroom Pub. Are they going to make you roll around on the floor like a fool in the lobby while the patrons inside laugh at you on closed circuit teevee before you're given the secret word to get in?

Details here.

Milwaukee blogger to sleep faster

Another citizen journalist who concentrates on local issues, Chris Liebenthal, is sure enough going to have his hands full now.

Follow it all here: Cognitive Dissidence.

Speak of the devil

A local writer, Dan Cody, chased down a story the J-S abandoned.

Heck of a story too, citizen journalist.

In tomorrow's Journal-Sentinel ...

... syndicated columnist Jonah Goldberg chastizes Democrats.

Better: "Readers chastise editors for poor spelling and wasting valuable column inches on a witless buffoon and laughing stock."

No local writers available, I guess.

Obama, be a manager

Appoint somebody else as the HHS secretary and then put Tom Daschle on staff.* It's not so hard, nor is it a hill worth dying on.

Especially now in light of this. What a deplorable mess.

* At a $1-per-year salary (with no car and no driver).

Gun owners live in fear and alarm

From an NRA press release:

"Citizens across the State are alarmed by the gathering forces that would erode long-cherished rights," said Koschnick campaign person Seamus Flaherty. "They know that among the strongest guarantors of these rights are courts that respect our constitutions and apply them as written."

Exactly, like the United States Supreme Court, which unanimously determined that the Second Amendment guarantees an individual — as opposed to a collective — right.* Those gathering forces.

* Despite not even being asked to, the damnable activists.

Felix Mendelssohn is 200

Scherzo (from A Midsummer Night's Dream, Op. 61)

WRtL backs activist Koschnick

The Wisconsin Right to Life Committee, the state's highest profile anti-abortion rights group, is betting that Jefferson County Judge Randy Koschnick will be more actively supportive of its agenda than Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

It's true, if WRtL believes Koschnick, in his capacity as a State court judge, can start knocking down 44 years worth of federal case law in furtherance of some PAC's agenda, he'll get his picture in the Oxford Companion to the Supreme Court under "judicial activism."

Then again, maybe WRtL should catch Koschnick's act on the stump, where he complains about judges overturning decades of precedent.

(They can catch him tomorrow at high noon at the Milwaukee Bar Association, although Chief Justice Abrahamson won't be there.)

02/03/59

Words Of Love
Not Fade Away
Buddy Holly

The McAdams Sutra

Engaging in homosexual sex is not like being black, it's a behavior, and ought to be subject to criticism.

Marquette's nutty professor gets all bent out of shape.

> Homosexual Atheists: The Double Whammy

Bizarro lawyers

Mayer Brown's International Construction & Engineering group is characterised by forward thinking, highly-skilled practitioners with the energy and vision to understand our clients’ goals and to deliver against them.

Mayer Brown LLP

He just kept ranting

P. McIlheran is inadvertently hat-tipped from a report about David Obey to a profile of local medium wave radio shouter Charlie Sykes:

"He just kept ranting that it is a bunch of lies," said Gerald Nielsen, 45, a utility worker in Cadott, Wis. "He wouldn't let me get a word in edgewise. ... He was trying to bully me."

And then Charlie Sykes hung up.

eta — Perfect timing on the blog feed:

Actual unretouched screen capture

Bit of a disadvantage

Wisconsin Supreme Court Chief Justice Shirley Abrahamson reported Monday that she raised nearly $823,000 in 2008. Her challenger Jefferson County Circuit Judge Randy Koschnick raised $14,700 over the same period.

Via WKBT La Crosse. But see, 35k claimed raised in January:

On Jan. 1, the Abrahamson campaign reported cash on hand of $696,100; the Koschnick campaign, $14,160.

Odd, when Steven Walters's item first appeared, that line read:

On Jan. 1, the Abrahamson campaign reported cash on hand of $696,100; the Koschnick campaign, $570.

So Randy Koschnick only spent $540 in 2008? Campaign person Seamus Flaherty must have one hella pile of invoices on his desk.

I spent $540 at T.J. Maxx.

Koschnick "unaware" of the law

Last week we learned that the political campaign of Jefferson County Circuit Court Judge Randy Koschnick is playing a little fast and loose with the facts of State v. Knapp, the infamous "bloody shoes case" Koschnick is using to attack Chief Justice Shirley Abrahamson.

Now we discover that Judge Koschnick and his supporters are engaging in a similar enterprise with the law, and attempting to solicit money from its propagation.

A fundraising letter authorized and paid for by Judge Koschnick's campaign and attached with a return-addressed envelope to stuff with cash contributions makes the following claims:

Invoking principles of "new federalism" Abrahamson voted with the majority to require suppression of physical evidence obtained as the result of un-Mirandized statements. Wisconsin is the only state who [sic] affords this protection to criminal defendants.

The latter assertion is presumably made in furtherance of Judge Koschnick's repeated insistence that Chief Justice Abrahamson is not only an "activist" who "legislates from the bench," but is also one who does so in an especially radical and solitary manner.

Only one small problem: The claim is demonstrably false and the four cases following below clearly demonstrate its falsity. One of the four is actually discussed at length in Justice Patrick Crooks's concurring opinion in Knapp, the very decision that Koschnick is criticizing.

The other three were issued by State appeals courts after State v. Knapp appeared in 2005. The most recent is already nine months old.

At last Thursday's candidates forum, the Chief Justice, after reminding him that the fundraising letter uses the present tense, gave Judge Koschnick several opportunities to retract the claim.

"Still think that's a correct statement?" she inquired. "I do," Judge Koschnick replied, "I don't think that those decisions allow for suppression of physical evidence following a Miranda violation."

Well, they do.

While some might believe this to be an insignificant matter, were a lawyer on the record in court to insist for the purposes of her legal argument that Wisconsin is the only State "who" adheres to a particular position on a particular question of law, she could very well be facing professional sanctions.

As an aside, it's interesting to note that an aspiring Republican operative by the name of Daniel Suhr also put forward false claims concerning two of the four cases, Farris and Peterson, which were previously addressed at this blog here and here last winter.

Mr. Suhr was attempting to show the invidious interstate influence of former Justice Louis B. Butler by asserting that the highest courts of Ohio* and Vermont derived inspiration from and followed the Wisconsin Supreme Court's reasoning in State v. Knapp.

This is also demonstrably false, as both courts clearly arrived at their conclusions independently and based those conclusions ultimately on their own State precedent, their own interpretation of federal decisions, and their own State constitutions (that final deference being indicative of the "new federalism" of which Koschnick speaks).

But while Suhr was also completely wrong, his false assertions are independent of Koschnick's more recent ones, as Koschnick is now claiming that Wisconsin is the only (italics Koschnick's) State that suppresses physical evidence where the suspect is not afforded a constitutionally adequate Miranda warning, whether that State actually relied on Knapp or not (which, by the way, none of them did).

Daniel Suhr was graciously forgiven for his partisan zeal and gross errors, as he was at the time yet to take his own attorney's oath before a justice of the Supreme Court (I hope it was Louis Butler).

But at least Suhr was "aware" of the law, much like an aspirant to the Wisconsin Supreme Court should be, especially when it's related to a question that appears to be the centerpiece of his political campaign.

The current incumbent certainly appears to be aware of it.

Unfortunately, Judge Koschnick's errors can be less easily dismissed — for a number of very obvious reasons. Here are the cases, along with some relevant excerpts:

Commonwealth v. Martin, 827 N.E.2d 198 (Mass. 2005)

The question presented in this case is whether the failure to give Miranda warnings to a suspect in custody requires suppression of physical evidence derived from an unwarned statement he made in response to police interrogation. Prior to the recent decision of the United States Supreme Court in United States v. Patane, 542 U.S. 630 (2004), the answer (at least in Massachusetts) would clearly have been "yes." We have consistently held that statements obtained in violation of the principles laid down in Miranda v. Arizona, 384 U.S. 436 (1966), are not admissible in evidence themselves, and may not properly be used to secure additional evidence for use at trial.

Because we conclude that the Supreme Court's construction of the Miranda rule, which was intended to secure the privilege against compelled incrimination in the context of inherently coercive custodial interrogations, is no longer adequate to safeguard the parallel but broader protections afforded Massachusetts citizens by art. 12, we adopt a common-law rule governing the admissibility of physical evidence obtained in these circumstances. Such evidence, if derived from unwarned statements where Miranda warnings would have been required by Federal law in order for them to be admissible, is presumptively excludable from evidence at trial as "fruit" of the improper failure to provide such warnings.

State v. Farris, 849 N.E.2d 985 (Ohio 2006)

To hold that the physical evidence seized as a result of unwarned statements is inadmissible, we would have to hold that Section 10, Article I of the Ohio Constitution provides greater protection to criminal defendants than the Fifth Amendment to the United States Constitution. We so find here.

We believe that the overall administration of justice in Ohio requires a law-enforcement environment in which evidence is gathered in conjunction with Miranda, not in defiance of it. We thus join the other states that have already determined after Patane that their state constitutions’ protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements.

Thus, the physical evidence obtained as a result of the unwarned statements made by Farris in this case is inadmissible pursuant to Section 10, Article I of the Ohio Constitution.

State v. Peterson, 923 A.2d 585 (Vt. 2007)

We agree with the analysis and result reached in each of these cases [Farris and Knapp].

For the above reasons, we conclude that we will not follow United States v. Patane under Article 10 of the Vermont Constitution and our exclusionary rule. Physical evidence gained from statements obtained under circumstances that violate Miranda is inadmissible in criminal proceedings as fruit of the poisonous tree. Since it is undisputed that the marijuana plants were such fruit in this case, the district court erred in failing to suppress them.

State v. Vondehn, No. C040956CR (Or. Ct. App. filed April 30, 2008)

For the foregoing reasons, Patane does not undermine our conclusion that police exploitation of conduct that violates rights that Article I, section 12, protects will taint any evidence that the police obtain in the same way that conduct that violates Article I, section 9, does. (fn 15) Accordingly, we conclude that the Hall analysis applies to evidence that the police obtain as the result of exploiting a Miranda violation and that that evidence is inadmissible at trial.

The question in this case, thus, is whether the police obtained defendant's post-Miranda statements by exploiting both his pre-Miranda statements and the evidence that they obtained from the search of the backpack, evidence that was itself the fruit of the previous exploitation of the original illegality. We conclude that they did.

(fn 15) In so concluding, we join the other states that have already determined after Patane that their state constitutions' protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements. See, e.g., State v. Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 109 Ohio St. 3d 519, 849 N.E.2d 985 (2006), cert. den., Ohio v. Farris, ___ US ___, 127 S. Ct. 1371 (2007); State v. Knapp, 285 Wis. 2d 86, 700 N.W.2d 899 (2005); Commonwealth v. Martin, 444 Mass. 213, 827 N.E.2d 198 (2005).

Wisconsin is the only State? Not exactly.

I can't speak for anybody else, but I would surely expect a qualified candidate for the Wisconsin Supreme Court to apprise himself of the current state of the law before he attempted to deploy it against his opponent for purely political (and fundraising) purposes.

* As an attorney acquaintance of mine who spent many years practicing in the Buckeye State colorfully observed back then:

"The interesting fact to me is that everyone in the majority on the Ohio decision [State v. Farris] — Justices Pfeifer, O'Connor and Lanzinger, along with Chief Justice Moyer — is a lifelong, old-school, law-and-order Republican.

"The notion that some wild-eyed liberal from another state could lead those four people down the garden path toward a real world Grand Theft Auto: San Andreas is preposterous beyond description."

Olympic champ inks endorsement deal

With RooR Bongs.

Seriously, cut the kid some slack already. He won seven gold medals, for crying out loud. He's entitled to a couple of hits at the bong.

After all, they're his lungs, as John Stuart Mill might say.