Friday, March 28, 2008

Is everyone the same on criminal justice issues, part 2

But then our friend Illusory Tenant said that, notwithstanding what the document says, we aren't supposed to look at it in terms of ruling for and against the defendant. We are supposed to count up all the criminal convictions before the court in these cases and see how many were overturned and how many were upheld. Then, we will see, the Butler campaign's numbers are right. This, he points out, is what all the little numbers on the list (e.g., "2:0")are supposed to mean.

At first blush, this doesn't work. The list contains cases in which there was no criminal conviction although maybe you could say that an adjudication of delinquency or a civil commitment is the equivalent of one, although if you do that, the campaign still has it wrong. It contains a number of cases - actually quite a few - in which there was a criminal conviction or charge, but overturning or upholding it was not the issue before the court.

Again, despite all the self congragulation in the left blogosphere about "hilarity" and Jessica McBride's supposed status as an amatuer, no one has responded to that either.

It may be the case that, notwithstanding the document's key and notwithstanding the inclusion on the list of cases that don't involve upholding or overturning convictions, the campaign only calculated its numbers using those cases that did.

In the descriptions next to each case, some are listed as cases involving convictions and, if you limit your self to those and add up all the counts, you get a number that approximates the campaign's claim, but there are still problems.

The largest is that the notion of adding up counts is silly. It would mean something if, in cases with multiple counts, the court was always separately considering each count and making an independent decision on each. There are a few cases in which that happened but, for the most part, the issue before the court was common to all of the counts. So, for example, the Manuel, Ford, Nelis and Mayo cases may have included 15 counts, but the court did not consider 15 issues. If you have a case with four counts and the question before the court is whether or not a single piece of evidence that supported the conviction on all four should have come in, it's not particularily meaningful to say that the court ruled four times for the defendant if it decides that it should not have.

To give a simple example. Let's imagine a justice votes to overturn a six and ten count conviction because, in each, there was a single warrantless search. She then votes to uphold eight convictions each of which has a single count. Does it make more sense to say that she ruled to overturn convictions 67% of the time or is it more accurate to say that she voted to uphold them 80% of the time?

That's an extreme example but there is something of that effect here. The multiple count cases are, with one exception, almost all in the "voted to uphold" column.

Putting that aside, there are still problems. I looked at 14 of the cases in which the list says there there were convictions at issue. In some (e.g. Parent), there were not. In some of these, one could say that there was something analagous to a conviction but Justice Butler voted for the equivalent of overturning the conviction, e.g., to set aside the adjudication of delinquency in Jerrell or to release the civilly committed sexual predator in Brown. (Remember the fact that he has not yet been released is not because the Court did not rule that he should be. It did.) If we count these cases by analogy, they need to be moved over to the "overturned" column and, since we are added up multiple counts, we would need to do that as well.

There are other problems in the sample of cases that I looked. Some (Campbell, Hale and Muckerheide) overcount the number of convictions that were at issue. One (Armstrong) fails to include a second count that was also overturned. There is at least one case that is not identified as a "conviction" case (Knapp) that was.

So again it looks like the number is wrong but we'd have to redo the analysis to know how far off it is. Depending on how you treat the errors that I found, they alone might move the number close to or over 40%. I doubt that the number would reach 50% or 60%.

But that alone wouldn't tell us much. Maybe 40 or 50 or 60 percent of the convictions should have been overturned. Is Justice Butler taking a more expansive view of the rights of criminal defendants than others? To get at that, we should probably do more than count up convictions and see what was left standing and, most importantly, we need to compare what his record to that of the others to see if there is a difference in philosophy or just a lot of blundering constables.


Brett said...

Please see the comments to "Part I," and in particular please see
The public has to know about this.

John Foust said...

Yeah, but "blundering constables" doesn't poll well with the Sheriff's Association, so let's not complicate matters with all these technicalities. Can't you boil it down to a number like "33% more tough on crime"? We've got to have this commercial on the air in three days.

illusory tenant said...

So, for example, the Manuel, Ford, Nelis and Mayo cases may have included 15 counts, but the court did not consider 15 issues.

Last I heard from you, we were to count only those cases where the question of either affirming or upholding the convictions was directly before the court.

Today you cite four cases (including one whose misrepresentation by the anti-Butler forces is nothing short of astonishing) where the convictions themselves were directly before the court, but now we're back to examining the underlying legal questions the court took up to get to the conviction itself.

Seems to me that was my original point all along: That the conviction itself is the ne plus ultra of criminal law and regardless of whether a particular case has to do with a direct challenge to the conviction or the admissibility at trial of evidence where the ultimate goal is attacking the conviction.

Bottom line: CFAF and friends have produced pure, underhanded fakery and so is the overarching Gableman talking point that Justice Butler is "soft on crime," "deliberately favors criminal defendants," or however they're stating it these days.

illusory tenant said...

Oh, and the latest: Butler has shifted his decision making from being "pro-criminal" to sightly less "pro-criminal" in order to present himself as more palatable to the electorate.

And here you are, endorsing the project -- which contains a number of other serious deficiencies -- that puts forth that irresponsible and indefensible claim.

John Foust said...

And for those who like to keep score, here's McCabe saying that the WEAC ad is horrible, too.

Rick Esenberg said...


First of all, if you read what I wrote, I said that I don't think that claim can be supported by this data.

Second, these four cases had 15 counts but the court did not make 15 different decisions.

Third, don't conflate CFAF with McBride. I have no idea what CFAF did because, although you claim to have a copy, you won't share it. Whatever the merits of what McBride did stands and falls on its own.

illusory tenant said...

First of all, if you read what I wrote, I said that I don't think that claim can be supported by this data.

What data? You wrote:

"But if you are looking at the narrower notion of whether a criminal conviction was upheld, you ought not to include [cases where judgments of conviction themselves were on direct appeal] because they didn't involve criminal convictions or the question of whether a criminal percentage was overturned or not. You only calculate the quarterback's completion percentage on the number of passes thrown."

And, if you do only run the numbers according to those criteria, then they still come out around 72%. So that's not going to help you.

What data are you referring to anwyay? I didn't see any data at McBride's site. Only conclusions. And more accusations that Butler is lying.

When is somebody going to prove -- as opposed to continually asserting that (1) Butler sides with "criminals" 60% of the time and/or (2) Butler is lying.

Either would be nice.

illusory tenant said...

By the way, Professor, consider the following portrayal of the Jensen dissent:

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

That is completely wrong.

I can't help but wonder, why on earth are you accepting -- apparently uncritically -- the results of a purported study based on case-by-case analyses (which aren't provided) by the same person who wrote the above?

As an academic, are not the bells and whistles going off at all for you? What if the same sorts of glaring errors led to the conclusions you're now lauding and attempting to confirm?

And how, for example, can you accept as "pro-defendant" a case where a motion to reconsider in light of earlier caselaw was granted to the State and the specifications of that rehearing mandated exactly according to the State's wishes?

There are several other examples as well. If somebody has justified this 60% pro-criminal figure, then please point me to it, together with the individual determinations made as to the classification of each case one way or the other in support of that conclusion.

That should be easy enough, shouldn't it? Conclusions without the underlying data and analyses of said data are not worth much, I'm certain you agree.

illusory tenant said...

One more afterthought, or four (among many other possibilities).

(1) If you don't break the opinions down by conviction, which "column" does State v. Young go in?

(2) How about Stenklyft? "Pro-criminal"? I really want to hear the answer on that one.

(3) State v. Campbell is "pro-criminal," despite Butler expressly affirming three convictions, because he wrote "passionate" dicta?

Most importantly:

(4) By any chance are you playing an early April Fool's trick on us, Professor?

Rick Esenberg said...

I accept nothing uncritically but you can tell precisely what she did. I am still going to comment on her numbers but the real key here is the comparative nature of the analysis. Mistakes - and there were some - are less likely to change the relative numbers. But more later.

illusory tenant said...

Can't you at least answer those first three questions? They should be a piece of cake, no?

illusory tenant said...

"You can tell precisely what she did."

No, I can't. But if you can tell precisely what she did, then you should be able to answer those three questions off the top of your head.

illusory tenant said...

And, by the way, are my eyes deceiving me, or does McBride actually describe Lackershire as Butler "siding with criminal's interest"?

As practically a man of the cloth, what's your reaction to that? Serious question.

Rick Esenberg said...


"Practically a man of the cloth"

Putting aside the, I don't know what else to say, bigotry in that statement, I am hardly that.

One of the things my wife saw right away about this blog is that there is more shark than shepherd.

I suspect that McBride put that case in the defendant's column because the Butler campaign did.

I can answer your questions and not necessarily in a way that you would challenge.

But here's a question for you.

Do you deny that Louis Butler is significantly more likely to rule in favor of the claims of criminal defendants than the conservative wing of the court?

I would agree with you that this is a truth that needs elaboration but I don't think that public discourse is served hy denying that it is a truth.

We started this debate by saying that we needed to talk about extraordinary decisons of the Court. In response, much of what we heard was dissembling about whether the movement in the court was extraordinary. Nothing to see here. Nobody here but us Scalias.

You don't believe that and, if you did,I'd be disappointed.

illusory tenant said...

Bigotry? Good heavens, Professor.

You have mentioned several times here that you participate within the hierarchy of your church. And I am certain that I recall you saying that you had attended something at least akin to seminary.

If I misinterpreted your various mentions of those things, then I apologize. I certainly wasn't implying any disrespect for that.

My question, rather, had to do with the portrayal of the individual who was the at the time the defendant in Lackershire as a "criminal," and that Butler's disposition in the case caters to a "criminal's interest."

As I'm sure you must be aware, Ms. Lackershire is a physically and mentally disabled woman, and the reason Butler voted to reverse the conviction was because she didn't understand the plea colloquy, and the fact is it may just as well have been Lackershire herself that was the victim of sexual assault.

Brought about by her partisan zeal to unfairly tar Justice Butler however she can, McBride's unfortunate characterization of that woman, to be honest, offends basic notions of common decency.

I expect we both share many of those notions, although apparently we come to them from variant approaches.

I simply wanted to ask you for your reaction in the context of the approach you take to reaching those notions. I was merely interested in seeing whether you agreed with me, that's it.

How that is bigotry, I have no idea whatsoever. I certainly hope that suggestion was simply the fault of my not being clear initially.

Personally, I don't think we should be referring to apparent victims of sexual assault as "criminals," and I'm certain you don't either.

Rick Esenberg said...

My reaction was that you seemed to be equating sexual assault with the clergy. You weren't so I apologize. It was late.

Your take on it did not occur to me because I am focused on the analysis (which treats the case properly)and not on her language. I actually started this thing by saying that she uses language that I wouldn't. I would not call the votes "pro-criminal" because, to my ear, it suggests a bias and not a philosophical difference.

Rick Esenberg said...

My reaction was that you seemed to be equating sexual assault with the clergy. You weren't so I apologize. It was late.

Your take on it did not occur to me because I am focused on the analysis (which treats the case properly)and not on her language. I actually started this thing by saying that she uses language that I wouldn't. I would not call the votes "pro-criminal" because, to my ear, it suggests a bias and not a philosophical difference.

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