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.