I wanted to turn at least one more time to the controversy (at least in the blogosphere) about the Butler campaign analysis that purports to show that he has ruled against criminal defendants (or to uphold convictions) 75& (or 70%) of the time. I have to prepare for class and don't have a lot of time but the analysis still reminds me a bit of John Randolph's description of a mackerel in the moonlight: "It both shines and smells."
Illusory Tenant argues that the analysis is all about convictions and simply consists of adding up the number of convictions that were involved in cases before the court and figuring out what percentage were "upheld" or "overturned." He points out that this is how Justice Butler described the analysis in a meeting with the Journal Sentinel's editorial board. Certainly, they have calculated something that purports to be that.
But there are several problems with this. First, let's look at what I take to be the analysis itself:
It does not claim to be a calculation of the percentage of convictions overturned. It claims to be a breakdown of rulings for and against the state. Viewed in that way, as I have pointed out, it is inaccurate.
Does the analysis make sense as an analysis of the percentage of time that, as Justice Butler told the editiorial board, he voted to "uphold convictions...."
Actually, it doesn't. First, the campaign has included a number of cases involving civil commitments or adjudications of delinquency, in which there was no conviction at all. I said that it makes sense to add chapter 980 and juvenile cases when one is doing the type of broader analysis that the document claims it is, but it makes no sense to include them on the issue of upholding convictions. (Even then, the inclusion of, for example, the Richard Brown and Jerrell C.J cases seems odd since both petitioners got relief that would be the equivalent of overturning a conviction.)
Second, the campaign includes a number of cases in which there was no question of overturning the conviction. It just wasn't the issue before the Court. Using these cases as part of the base is like calculating Brett Favre's interception percentage based upon running as well as passing plays.
Third, the campaign seems to count as upholding a conviction a number of cases in which the defendant was granted relief that either resulted in - or might have resulted in - an overturning of a conviction or the inability to obtain a conviction down the line. Most people would not regard that as "upholding" a conviction.
Again, I don't want to make more of this than it's worth and I have been very clear that I think these numbers are of limited use and really should be used in comparison to others to get a sense of differing philosophies. But the fact is that whoever did this analysis was trying to tease the numbers to make them look less favorable to the positions of defendants or similarly situated individuals than they are. I don't know what the right percentage would be - and as I have said I don't know that CFAF's number is correct either - but it seems pretty clear that it's not what the campaign claims it to be and I think that's appropriate for public commentary just as it was appropriate to comment on the inaccurate claim that Richard Brown had been released or the misleading nature of the Gableman ad about Rueben Mitchell.