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.