Friday, March 28, 2008

Is everyone the same on criminal justice issues, part 5

So did Jessica McBride get the numbers right? I think that the answer is mostly, but I come up with a lower percentage for cases in which Justice Butler sided with the claims of a defendant. But, as I will point out momentarily, it's not the precise percentage that really matters. It's the comparison among the Justices. It's her willingness to do that which is her real contribution.

Here is what she has done. She took Butler's list of 70 cases and tossed out the ones that aren't criminal. While I can see making a case for their inclusion, I think that was a reasonable choice. If we are going to start including things like civil commitments and juvenile cases because they are like criminal cases, then we would have to include them all. In any event, the exclusion of these cases isn't going to change the numbers all that much because, as I have noted, the Butler list gets a number of them wrong.

Having done this, she takes 11 cases in which the Butler campaign claims that it ruled against a criminal defendant and says that he actually did rule in favor of some claim made by a defendant. She is, I think, right on 8 of the 11. I understand why she did what he did on the three where I would go the other way (Stenklyft, Ernst and Campbell), but when we are doing this type of macro analysis, being consistent across cases is really important. In Stenklyft, for example, Chief Justice Abrahamson and Justices Butler, Bradley and Crooks did adopt a position that is more favorable to defendants than Justices Prosser, Roggensack and Wilcox but if we are going to start making that type of judgment call (i.e., did the defendant lose or win well), we have to be sure that we make it consistently and that's not a burden that anyone looking at these numbers has undertaken. The fact is that the defendant did not get what he wanted which was an affirmance of his sentence modification.

Then she adds in four criminal cases that were omitted from the Butler analysis and, I am assuming, scores each of them as rulings in favor of the defendant. She is right on three of the four.

Again, I understand why she went the way that she did. The case where I disagree is the Mark Jensen case. There is no doubt that Justice Butler adopted a tougher standard for the admission of Julie Jensen's warnings about her husband than the other six justices. There is no doubt that it is a ruling that is friendlier to the defendant than that of the other six. But, remember, we are looking at the big picture and what the big picture requires more than anything else is that we apply our rule of analysis consistently. Jessica's rule is "did the defendant win anything" and, as I have argued, in a macro analysis like this, that's an acceptable rule. In Jensen, the defendant won below and lost it at the Supreme Court. Even though Jensen, like Stenklyft, is a case that conservative critics of Justice Butler might legitimately use to advance their case, in the analysis that we are doing here, they belong in the other column.

So where does this leave us? My adjustment of the numbers says that Justice Butler sided with the claim of a criminal defendant in just under 48 % of the cases. You could tweak the number a little if you excluded (and you would have to exclude)the two cases (Lord and Daley) where the state seemed to agree that it's victory below was undeserved although Lord is not so clean on that. That would put the number at around 46%.

But my adjustments have little impact on the comparative numbers and those are the ones that are important. As I have said, there is no number that is too high or too low for "rulings in favor of defendants." We learn something by looking at how the justices differ. There have been elaborate attempts to claim that there aren't differences.

But there are.

5 comments:

Anonymous said...

Both the title of this series, and the lowest common denominator defense of McBride to which Mr Esenberg consistently falls back, are ridiculous strawmen.

The first: Apparently someone has claimed that everyone is the same on criminal justice issues!

Um, who?

Nobody, that's who. And barring the remarkable idea that a good justice is necessarily a perfect clone of some other justice, it's hard to see why anyone would think this per se could be an issue, pro or con. The question surely is whether the differences amongst justices amount to problems with competence or the greater good of the justice system.

But arguing that about Butler would set the bar rather awkwardly high, wouldn't it?

Better to argue (against nobody) that there may be some differences between the justices, and then, with some follow-up burbling noises like "pro-criminal" or "activist", hope that the enormous black hole at the middle of the reasoning will somehow go unnoticed.

The second strawman: Surely it's reasonable to want to just have a public discussion of the differences among judges at election time!

Apparently someone denied this one, too -- though we won't discover who, of course.

But none of the trenchant critics of McBride's ghastly hatchet job have taken issue with discussing the candidates and the records. They've taken issue with making things up about the candidates; or, at a minimum, with making very strong charges with no cogent evidence supporting them.

Interestingly, those critics have all come back repeatedly to the claim that Mr Esenberg is to be respected, that he's better than his endorsements, his campaigning, and his concomitant disavowals of campaigning would indicate. Maybe they know him better than this blog's output reveals; but such compliments increasingly have the look of things their writers wish were true, rather than something that can be reasonably believed in light of the evidence.

John Foust said...

What? Anon, are you saying that cites and footnotes make for a more interesting, more academic read? I say, "If you give a mouse a cookie..." Just don't go there! If you give folks all those specifics, next thing you know they'll be challenging you on those specifics. Your loyalists are happy with the vague finger-pointing at your dark enemies, your critics will only get something to chew on. Errors are found, numbers slither ten points one way or the other.

Either way, the higher goal has been accomplished here. Look! A shiny object! Say "Jessica's OK", that'll inflame them. April 1 is only a few days away. Once that date's past, we can have a more open discussion about the issues and the mistakes in the statistics and the election complaints. April 2 will be a time to get over it and a time for healing. Who cares at that point, except the trainspotters!

Rick Esenberg said...

Anon 8:05

You've got to be kidding me. There has been enormous effort to convey the message that Louis Butler's record on these issues is other than what it is. His campaign bas suggested that he doesn't vote for criminal defendants on appeal anymore than anyone else. The statistical analysis that it did seems to have, at least, been influenced by a desire to make the number of times that he has done so look as low as possible. In fact, there has been a effort to say that the question of how a justice votes on criminal justice issues is out of bounds because it suggests a bias. The reference in my post to no liberal and conservative judges is a paraphrase of what the candidate himself has said. There is some truth in that statement in that no one simply decides cases based on politics or personal preference, but it also goes too far.

As for discussing these differences, you say that the issue is "whether the differences amongst justices amount to problems with competence or the greater good of the justice system."

I don't know what you mean by the latter, but the drift of your comment may reveal where we differ. The question is not just competence or who has a better resume. There are people who think that judges should be chosen that way. I disagree. Those things are important but but how someone who we know is smart and honest and experienced approaches these issues is as well.

As far as my "defense of McBride", people seem more upset that I would possibly consider that she may have done something worthwhile than they are willing to respond to what I've said about what she did. She made some mistakes, but the results are still instructive.

And ... no one has pointed to where she made things up. Tenant's discussion of what he claims are CFAF's treatment of the cases has nothing to do with McBride.

Anonymous said...

Tom Bastings wrote to the Wall Street Journal and claimed that they have sharply critized three of Butlers ads that were unfair to Gableman.

Wow, I live in Wisconsin and this was the first I heard about this, when all I've heard is criticism over one Gableman ad.

Anonymous said...

Who's kidding whom, Mr Esenberg? Let's set aside your grim determination to continue using the absurd notion of "voting for criminal defendants" -- an ill-formed description of virtually any ruling at the SSC level, as you well know. You are at least correct when you say:

"There has been enormous effort to convey the message that Louis Butler's record on these issues is other than what it is."

Your unrelenting effort not the least of it, Mr Esenberg.

You add: "The question is not just competence or who has a better resume. There are people who think that judges should be chosen that way. I disagree. Those things are important but but how someone who we know is smart and honest and experienced approaches these issues is as well."

Ah, how they approach the issues. So much partisan hackery is forgivable under that opaque slogan, isn't it?

But of course how they approach the issues will distinguish any two judges; hence the foolishness of the title of your recent series of apologia. The question is whether "how they approach the issues" constitutes law-based reason to vote for or against them. And on that question, where the bar for cogent reasoning is dauntingly high -- especially, no doubt, when the facts do not support the desired conclusion -- mere bromides about different philosophies coupled with unwarranted smear phrases are vacuous.

Over the long run, they are a sign that nothing better is available, moreover.

Finally: "As far as my "defense of McBride", people seem more upset that I would possibly consider that she may have done something worthwhile than they are willing to respond to what I've said about what she did."

Strawmen: cheaper by the dozen. How carelessly would you have to read the criticisms in order to tell yourself this? The objection, repeatedly, from multiple sources, is that you have actually endorsed her strongest conclusions ("cooked the books") and actually winked at her worst errors, which are so egregious that your actual acceptance at face value of her other claims seems to betray a serious lack of intellectual judgment. How this becomes anger at the possibility that you would consider that she may have done something worthwhile... is a remarkable triumph of misrepresentation.