Jessica McBride has now published the Butler campaign's revised list of cases in which he ruled in favor or against a criminal defendant. The list is supposed to support the campaign's claim that Justice Butler ruled in favor of a criminal defendant 75% of the time. (Actually, the campaign's characterization of the results seems to come to about 70%.)
As I have blogged before, there is limited value to numbers like this. They are best considered in comparison to other justices. Even for those with a fairly conservative view of these matters, sometimes the defendant should win. But the Butler campaign and a group opposing Justice Butler's reelection are offering us some numbers that are, to put it mildly, inconsistent. The Coalition for America's Families, for example, claims that Justice Butler rules in favor of criminal defendants sixty percent of the time. Sixty percent is a long way from 25%.
I don't how CFAC did it's analysis, but the Butler campaign, to its credit, has released it own analysis.
The problem is that a brief review of the analysis raises serious questions. Jessica McBride points to several cases that she feels were mischaracterized. I haven't run down all of them, but she seems clearly right with respect to at least some. Here are a few more based only on cases which I had some familiarity with. These are cases in which the Butler campaign apparently claims that Justice Butler ruled against the "state/inmate" The question here is not whether the outcome was correct, but if that claim is accurate.
Coleman v. McCaughtry - Coleman was an inmate who filed a petition for habeas corpus in 2004 arguing that he had been denied effective assistance of counsel when his lawyer failed to appeal his 1986 conviction. The issue was whether his motion came too late, more specifically, whether it was barred by a legal doctrine called laches that says, essentially, that you can lose your rights by sitting on them for too long. A majority of the court held that some of the elements of laches had been proven by the state, ie., that Coleman had unreasonably delayed in bringing the claim and the state had no knowledge that it would be brought. But Justice Butler disagreed and would have remanded the case for factfinding on those issues.
Coleman nevertheless got some relief because all of the justices felt that there needed to be factfinding on whether the state was prejudiced by Coleman's delay. So, we have a majority issuing a ruling that went against Coleman on two issues (his claim had been unreasonably delayed and the state had not known of it)but gave him a chance to contest the state's claim of prejudice on remand. Justice Butler would have given him a chance to contest the state's finding on all of three issues.
Of course, Coleman has no guarantee of success on remand. He may very well lose. But, clearly, in this case, Justice Butler ruled in favor of a convicted petitioner.
State v. Jerrell C.J. - This is one of the five decisions discussed by Judge Diane Sykes in her 2006 Hallows lecture at Marquette University Law School. It involved the admissibility of a juvenile's confession. All of the justice felt that it was involuntary and had to be excluded. A majority, joined by Justice Butler, went further and adopted a rule that all custodial interrogation of juveniles must be recorded. Justice Butler also would have held that, whenever a juvenile asks to speak to his or her parents, all questioning must stop. None of the justices would have adopted a per se rule that juveniles must be given an opportunity to consult with a parent or interested adult prior to interrogation.
I can't see how this could possibly be characterized as a case in which Justice Butler "ruled in favor of state/against inmate."
McBride also argues that it was wrong for the Butler forces to add cases involving civil commitments. I disagree, in part because, as Illusory Tenant points out, the Gableman campaign or its supporters have raised such cases on this issue and because I think they are pertinent to the larger issue of judicial philosophy which has to do with how you balance public safety with the rights claims of the accused.
But, again, I don't understand the characterization of some of these cases.
State v. Brown is the now infamous case in which the Butler camp and others have pointed out that a claim made by the Gableman campaign that Brown, a sexual predator, has been released is literally false. Brown is still in custody.
But what the Gableman's critics don't point out is that the Supreme Court ordered his release. A majority, joined by Justice Butler, held that the state had not proven, by clear and convincing evidence, that it was more likely than not that Brown would reoffend. It's mandate was as follows:
For the reasons set forth, the decision of the court of appeals is reversed, and we remand the cause to the circuit court with instructions to notify the Department of Health and Family Services that it should submit to the circuit court, pursuant to Wis. Stat. § 980.08(5), a plan for Brown's supervised release.
I can understand why someone would think that the case resulted in Brown's release. Obviously something happened after remand that is preventing it.
The Butler campaign characterizes this decision as a ruling "in favor of state/against inmate." It says that the case involved a "technical issue- remanded to give the State a chance to make its case." Actually, what the court held is that the state hadn't made its case and it remanded for the circuit court to consider a plan for supervised release.
All of this, it seems to me, makes it likely that the "75%" number is wrong. Mike Plaisted says that he did analyses of his own. Once he claimed that his own informal review of 31 cases showed Butler sides with the defendant approximately 42% of the time. That is obviously a much smaller sample than used here, but the rate would be consistent with the idea that there are substantial errors in the Butler campaign's analysis. Yesterday, he threw out a selection of statistics that don't address the question at hand. He says he counts 45 cases which overturned or upheld a conviction (not quite the question here but potentially instructive) and, based on the snippets he offers, it seems that there are up to 20 in which he believes that Justice Butler voted to uphold the conviction and 13 in which he voted to overturn. How I am supposed to conclude, as Mike says, that the campaign's numbers are "fairly accurate" is unclear to me. Maybe they are, but you can't tell that from what he has chosen to share with us.
Again, what would be more instructive is a cross court comparison of these numbers, particularly in cases that are not unanimous. I haven't seen those numbers but my impression is that Butler would vote with defendants more than Roggensack, Prosser and Wilcox (we don't have enough Ziegler cases yet)and less than Abrahamson and Bradley.