Setting the record straight, part 4

I wanted to unpack at least one other internet exchange on the state supreme court race, although this one does not have much to do with Daniel Suhr. Once again my foil is Illusory Tenant, although more for finding a point of departure than to offer rebuttal.

IT's brings to our attention the following comment by Judge Gableman in an internet debate:

[Butler] has a substantial and consistent history of legislating from the bench and we don't have too look far or long to find a series of cases that reflect that. I think what he said here today sounded very good, but in addition to all these longstanding case precedents he cited, I remember reading one case where he cited The Wizard of Oz and based decisions on social science studies that were manufactured at colleges and universities

IT takes Gableman to task for using the verb "cite" and, while I doubt that there was any nefarious intent, it is a bit of a malapropism here. As IT points out, "the land of Oz" was a figure of speech. I think there is a Wizard connection here but more on that later.

I want to talk about the business about "social science studies manufactured at universities" and we can use the "Oz" case, State v, DuBose to illustrate what the real issue is.

DuBose is a case that teaches well. The victim knew DuBose who frequented the video shop where he works. The victim and his friends ran into DuBose in the parking lot of a bar and invited him back to his apartment to smoke dope. DuBose agreed and they did so. In the course of the proceedings, DuBose placed a gun against the victim's head and robbed him. He then fled. He was caught running around the neighborhood and placed into the back of a squad car where the victim identified him.

Yet the DuBose majority excluded the identification of a guy who the victim knew and with whom he had just been partying and who had just recently shoved a gun to his head.

Let's assume that a showup in the back of a squad car is unduly suggestive. The rule, followed by SCOTUS and SCOWIS prior to DuBose, was that the identifications arising from even suggestive showups could be admitted if, under the totality of circumstances, it was reliable. That sure would seem to be the case here.

In DuBose, SCOWIS abandoned that rule saying that not only identifications from unduly suggestive identifications but identifications stemming from any showup must be excluded even if they were, under the totality of the circumstances, reliable. They can come in, according to the court, only if there was some need to proceed in this way.

Here's where the studies come in. Let's put aside the phrase "manufactured" which is a bit of populist flourish. The majority relied on studies that purport to show that eyewitness identifications are unreliable. It is not unsual for this type of evidence to be cited to courts. Briefs icluding such work even have a name - Brandeis briefs - after former Justice Louis Brandeis who, as a litigator, pioneered this type of thing. Conservatives do it too. Just this week, the indidspensable Clarmemont Institute filed such a document in support of second amendment rights in D.C. v. Heller.


But the dissent objected to the way in which the majority used it to alter the requirements of the state constitution. They thought that tied the constitution to the latest academic fad, lent itself to picking and choosing among conflicting srudies (none of which would be subject to cross and rebuttal and findings of fact). They also argued that, in this case, the study results were mixed and could just as readily be used to create a constitutional rule against line-ups. Nor does the failure rate of eyewitness identification generally tell us much about whether it was unreliable in this case. (This is why it was fair for Daniel Suhr to say that Justice Butler "especially defended" use of the studies. He was responding to Justice Roggensack's criticism of their use.)

So where do we find a Wizard connection? IT emphasizes how complicated DuBose is and we hear that in judicial elections. You can't judge a decision, we are told, unless you read the briefs, heard the argument and know enough law to place it in context. So lay off.

This reminds me of the Land of Oz:



There is, of course, some truth in claims about the complexity of all of this. But responding to that by suggesting that popular discourse about decisions is not possible - or to simply dismiss a legitimate criticism as incompletley stated so as to suggest that there is no issue - is a luxury we can't afford if we want to elect judges. People are going to criticize and respond to criticism without launching into lengthy disquisitions just as they do when they discuss complex issues of taxes, poverty and foreign policy in nonjudicial elections. ("McCain wants to stay in Iraq for 100 years" is just as unfair as "Justice Butler loves criminals.") In fact, suggesting that a critic has manufactured an issue because there is more to it than the limitations of campaign spots will allow, is, in its own way, also misleading.

The way in which SCOWIS has picked out studies cited by advocacy groups to fashion broad rules that significantly expand judicial power is a legitimate issue. (Two other cases in which this happened are Jerrell C.J. and Ferdon.)