Monday, March 24, 2008

It's not getting any better

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.

14 comments:

Dad29 said...

It's beginning to look like either:

1) Butler doesn't have a clue about his rulings, or

2) Butler's campaign staff doesn't have a clue about his rulings.

Either way, Loophole has a problem, Houston.

John Foust said...

OK, Dad29 - pretend you're accepting resumes for the job opening. You get Butler's and Gableman's. Who gets to the next round, based on qualifications?

Or, if I wanted to be more accurate, I guess Gableman wouldn't even send his resume, he'd just make some calls and campaign contributions to your boss, and then you'd be told to give him the job.

Oh, wait! I forgot. This blog is about the issues and legal fine points, not about endorsing anyone in the race.

Anonymous said...

Foust. . .you're good!

Anonymous said...

Foust...you're a fool!

Anonymous said...

Anon 2:22--only a fool knows a fool.

Scott Colson said...

Rick, how can I contact you?

Anonymous said...

I know this doesn't have anything to do with the numbers but wasn't there a case pending in the lower court in Madison challenging the marriage amendment.

Now, where do we think Butler would be on that issue if it comes before the court.

I think Butler was quoted as saying in the Sunday MJournal that he's trying to turn the nation in the right direction. That sounds rather activist to me.

Rick Esenberg said...

My e-mail is richard.esenberg@marquette.edu

Dad29 said...

Foust, I'm not screening candidates for a position.

I'm voting for or against a philosophy (in this case.)

And if Loophole's philosophy is as confused as his ciphering of cases, then I'll take Gableman's.

I think you understand the importance of numbers, John, right?

illusory tenant said...

as confused as his ciphering of cases ... I think you understand the importance of numbers, right?

Will you promise to let us all know how delicious those words tasted in a day or two?

illusory tenant said...

First, the campaign has included a number of cases involving civil commitments ...

Two.

One of them, State v. Richard A. Brown, has been used repeatedly to attack Justice Butler.

Do you seriously expect him not to make reference to it in his defense?

The other, State v. Bush, is about as "anti-criminal" as it gets.

Do you seriously expect Butler not cite this case in defense of the scurrilous attacks against his record?

or adjudications of delinquency, in which there was no conviction at all.

Adjudication, singular. There is but one juvenile case on that list. And you yourself have used it to criticize Justice Butler.

Do you seriously expect him to not make reference to it in his defense?

Let me ask you one more time: Who exactly is it that's "sniping around the edges" on this issue?

I'll have more. Much more. Stay tuned.

John Foust said...

Dad29, the conservative blogs are full of people who share the political philosophy that Gableman constantly wink-winks about. Does that make them qualified for the Supreme Court? I've said several times that, for example, Prof. Esenberg is arguably a more qualified candidate for the Court than Gableman. My question remains. Do you think Gableman's qualifications and resume indicate that he's good enough for the Court? Or does politics matter more?

As for numbers, even while repeatedly flogging the numbers in order to have something to distract the masses, Prof. Esenberg has laid out a number of hedge statements to allow that these statistics are nearly worthless except as semi-random integers. Start from a statistical standpoint, with such a small data set. Ignore realities such as trends of errors in the lower courts, trends in law enforcement tactics, changes in society, changes in new statutes never tested, cases they declined, and the complex legal questions and human situations. But yes, we can know to two decimal places that someone isn't tough on crime! (And in that, I'll decry the ridiculousness of commercials on both sides.)

There's a voice in my head that's saying something about the quality of math education in gummint-run skoolz but it must just be the THEB again.

Disclaimer: No one paid me to have this opinion or withhold this opinion.

Anonymous said...

I was happy to see that the WSJournal has decided not to endorse Butler.

Anonymous said...

I was happy to see both the La Crosse Tribune and the Green Bay Press Gazette endorsed Justice Butler. The Green Bay Press Gazette is all the more pleasing, since the editors finally read the lead-paint decision and finally realized what is plainly true: it is not an activist opinion; it is faithfully premised on precedent, Collins v. Eli Lilly; and, in fact, the Collins opinion is quoted almost in its entirety throughout the Thomas opinion. Don't believe me? Read it for yourself.