Illusory Tenant thinks he has the key to the mystery of the Butler's campaign's claims about how often he does or does not rule in favor of criminal defendants. He seems to be saying that, in all the cases in which the court considered something that the campaign wants to call a criminal case, convictions were overturned only 30%of the time.
That's an odd claim. A number of these cases did not involve decisions whether or not to uphold criminal convictions or, in the event, did not reach that issue. To use them as the denominator in which overturned convictions is the numerator would seem to be misleading.
I agree that Jessica McBride probably wants to make Butler look "bad" in the sense of favoring criminal defendants. Illusory wants to make him look "good" in the sense of not doing so. Personally, I'm just interested in some accurate numbers honestly described, keeping in mind that they are not meaningless and not talismanic. Quite frankly, my professional interest (as in justifying my pay envelope) is more that you care about the Wisconsin Supreme Court than you agree with my take on it.
But, as out Illusory friend says, "here's the deal." Jessica McBride showed a list of cases in which the Butler campaign claimed that he had ruled in favor of the state and against the defendant 70% of the time. These are, as I understand it, the campaign's words and not hers and that is certainly what a number of media outlets have reported. That claim (which is far different than "I didn't vote to overturn a conviction") is clearly wrong.
Some want to know if I am, therefore, calling someone a liar. I very rarely do that here (although I am calling whoever runs Planned Parenthood's campaign against Jim Ott and others precisely that - stone cold liars). Having spent over 25 years as a lawyer, I have come to the conclusion that people are often flatly wrong while sincerely believing they are right. And, as much as I may differ with Louis Butler on legal matters, I have repeatedly said that I believe him to be an intelligent and honest man as I also believe Michael Gableman to be.
But the idea that Justice Butler does not have a more expansive view of the rights of criminal defendants than the more conservative wing of the court is preposterous and, if you will note the exchanges between me and our representatives of the defense bar, no one really disputes that. In fact, I am the one who has ventured the idea that I don't think his view of the rights of criminal defendants is quite as expansive as that of the Chief and Justice Bradley, although I think that proposition may require further study.
And, no, I don't think that the Court's criminal law cases are the most important issue in this race. In fact, that is the one area where I probably differ the least with the court's "emerging majority" (although I do differ). The most extraordinary usurpations of legislative and popular prerogative lie elsewhere.
6 comments:
But the idea that Justice Butler does not have a more expansive view of the rights of criminal defendants than the more conservative wing of the court is preposterous and, if you will note the exchanges between me and our representatives of the defense bar, no one really disputes that.
Nicely and accurately said. And, far more intelligently than spuriously proclaiming Justice Butler pro-criminal, which is what both McIlheran and McBride said.
It's your support of that kind of mental hijinks that is disturbing, Rick, because as iT said, you are to be respected.
Have a wonderful Easter Sunday.
So, who was it exactly that was "sniping around the edges" again?
Your many readers might also be interested in the whole story behind Patrick McIlheran's post on this subject, which has been sitting on the main index page at www.jsonine.com all weekend:
So, so busted.
IT, you're not engaging. The list that McBride put up does not make claims about the percentage of times a conviction did not get overturned. You may be able to pull that out of it but it distinguished between rulings for the state and rulings for the defendant and, unless she has fabricated it, that breakdown is just wrong.
Read that post or, better yet, watch the video and let Justice Butler himself speak. He addresses the number directly.
And, as I said earlier, y'all can pick away at the parenthetical notations beside the docket numbers on the list, but those are not the central issue here.
Remember, the Butler campaign was responding to percentages with percentages, and Butler explains what his are derived from.
My suggestion is that the question should have been put to the Butler campaign, or to Butler himself, before anyone started calling him a liar on the pages of the Milwaukee Journal-Sentinel.
Why don't you engage that?
One more thing:
The list that McBride put up does not make claims about the percentage of times a conviction did not get overturned.
What are you talking about. Of course it does. That is the whole point. That's where the 70% comes from. A percentage is a number, and numbers are derived from other numbers, not from words.
Once again, look at the numbers. For example: (3:0). A criminal appeal came before the court involving three convictions (those things that are kind of essential to criminal cases in the first place).
Regardless of whatever procedural issues were involved, the case was remanded with the convictions intact; i.e., Butler did not vote to reverse the conviction.
Another example: (2:1). A case came up on appeal with three convictions. Butler voted to reverse one of them, but the other two remained intact.
It's not that complicated. And as I have said repeatedly, if the problem is with the description beside the docket number, then, by all means, discuss that.
But then you may find, for example, James E. Brown. Brown petitioned for leave to proceed with his motion to withdraw his guilty plea on constitutional grounds.
Butler agreed that the plea colloquy was constitutionally infirm.
Not only did the Supreme Court not say anything about whether Brown's plea could be withdrawn on his merits, it ordered another hearing at which the State could present more evidence showing why Brown should not be allowed to withdraw his plea.
Pro-defendant? Pro-State? There are equally compelling arguments on both sides. Hardly the stuff of calling a sitting Justice of the Supreme Court a liar.
But, as far as Louis Butler was concerned, Brown's conviction remained intact.
So, I'll ask again. Do you actually expect Justice Butler to count towards the overall percentage a conviction as reversed where no conviction was reversed?
I don't think so.
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