Reflecting on some judicial campaign ads, part I.

I have not blogged on the Supreme Court race lately, so I have a few posts coming. The Coalition for America's Families released two ads yesterday criticizing Justice Butler's opinions in two criminal cases, State v. Armstrong and State v. Jensen. A change was made to the Armstrong ad after a station in Green Bay pulled them, but that change seems to have related to what the ad said about Armstrong and not what it says about Justice Butler or the decision.

I have to prepare some remarks for a discussion on free speech in judicial elections next Tuesday and want to use the ads as vehicles for thinking about this. Let's start with the Jensen ad.

The salient issue involved a letter written by the victim Julie Jensen stating that, if anything were to happen to her, her husband ought to be the first suspect. Julie Jensen was found dead and her husband was subsequently charged with poisoning her.

The ad says that Justice Butler, according to the Wisconsin Law Journal, "would not have allowed the jury to hear the letter."

That may be a reasonable inference from his decision, but there is no way to know that for certain.

Justice Butler's campaign put out a press release stating that he did not vote to admit or to exclude anything, but to remand the case to the trial court to have it determine whether to admit the letter - something that all seven justices agreed needed to be done. (The trial judge had, after initially saying that it should come in, decided to exclude it.)

The Butler campaign's statement is correct.

Where Justice Butler differed with the other six justices was in the standard that ought to be applied. The issue was whether admitting the letter would violate the defendant's right to confront witnesses against him. The letter was, everyone agreed, "testimonial" in nature and, of course, the person "testifying" in the letter - Julie Jensen - could not be "confronted" (cross examined) because she was dead, allegedly at the defendant's hand.

All of the Justices (including Justice Butler) agreed that, nevertheless, the letter could come in if it satisfied a doctrine called "forfeiture by wrongdoing." Where they disagreed was in the definition of the doctrine. The majority would let a testimonial statement like the letter come in if the defendant's wrongdoing caused the unavailability of the witness. Justice Butler wanted to add a second requirement so that the letter could come in if the defendant's wrongdoing caused the witness' unavailability and that the defendant had acted for the purpose of preventing the witness from testifying. In Justice Butler's view, this narrower concept of forfeiture was required by the United States Constitution.

Justice Butler's formulation of the standard is, of course, more stringent. It does not seem unreasonable to think that it would have resulted in the exclusion of the letter. Jensen arguably acted to kill his wife because he wanted to be free of her, not for the specific purpose to prevent her testimony.

But we can't be sure because it is unclear whether the trial judge had applied that or some other standard before the appeal and, on remand, he was required to apply the broader exception adopted by the majority. Nor can we know for sure how Justice Butler would have applied the narrower standard to the letter because he did not address that.

Is the ad literally false? I don't know. Maybe the Wisconsin Law Journal did express the view that the letter would have been excluded under the standard that Justice Butler wanted to apply as the ad claims. If so, the language is "artful," but true.

Is is misleading? Justice Butler did not address the application of his standard to the letter. While it may be reasonable to assume that it would have kept the letter out, it would have been more accurate to say, as the press release accompanying the ad did, that his opinion would have made it "impossible to admit the letter at trial" or, with even more care, that it would have made it unlikely that the letter could be admitted.

But, then, I don't think that would much change the message communicated by the ad or its impact on voters.

One could still object to the ad's argument by saying that there are countervailing considerations other than the probative value of the letter. If you think that the US Constitution prohibits admission of the letter because it violates Jensen's confrontation rights, your hands are tied. Justice Butler apparently did reach that conclusion, although the others did not.

The United States Supreme Court (ironically, in an opinion by Justice Scalia) has recently taken a rather hard line on the confrontation clause. There are very real issues raised by the admission of the Jensen letter and, who knows, maybe it will turn out that Justice Butler was right about the impact of the Sixth Amendment here.

It is true that a thirty second spot does not convey the complexity of the matter. It can't. It raises some of the pertinent issues, i.e., the letter has probative value and the witness is gone because she is dead and the defendant may have killed her, but not all of them.

Of course, no political ads ever do complete justice to an issue. We worry about it more in the context of judicial campaigns because we see judges as resorting to external authority and not simply applying their own points of view. To understand whether they have acted properly, the argument continues, you have to understand that external authority and how it is said to apply here. There is a certain irony in the advancement of this complaint by people who believe that this external authority is highly malleable and capable of supporting many, many different outcomes, but, as a conservative legal academic, I buy it.

But it's hard to do that in any kind of campaign communication that can be understood and attended to by the general public. One response to that is to reject the election of judges. I am tempted by that, but, then, I don't see the appointment process as avoiding the problem. The stuff that Ted Kennedy says at confirmation hearings is every bit as mindless as the worst ad slamming the jail door shut.

The other is to drive substance from the campaign by imposing a set of requirements for complete accuracy and thoroughness that makes ordinary discourse impossible. In this world, judicial candidates compete by their endorsements and "qualifications." This isn't any better.

So I think that the best course is to let those who are interested speak.

My response to the Armstrong ad raises some different issues, so I'll put it in a separate post.


NB:There was another disagreement between Justice Butler and the majority on whether or not another statement made by Julie Jensen prior to her death was testimonial. But the ad doesn't get into that.