Saturday, February 02, 2008

Setting the record straight, part 1

Our illusory friend is going all medieval over my student and research assistant Daniel Suhr again.

I dislike the implication that one of our students has somehow done bad work or failed to meet some objective standard when he has not, but Daniel is a big boy and capable of defending himself.

Besides, as I have said, politics ain't bean bag and apparently the punctilious rectitude with which one is supposed to treat elected justices of the supreme court does not apply to mere law students. Well, we all know how it is between the powerful and the weak.

More importantly, this series of posts sheds more confusion than clarity on the issues in the state supreme court race. So I am going to have to straighten a few things out. Sorry, but it's going to take some detailed discussion of the law.

Is it fair to say that the Knapp Court failed to follow the US Supreme Court's decision in United States v. Patane?

One of IT's criticisms of Daniel and others relates to a claim that the Wisconsin Supreme Court's (SCOWIS) interpretation of the Wisconsin Constitution in State v. Knapp did not follow the United States Supreme Court's (SCOTUS) interpretation of substantially similar provisions of the United States Constitution in United States v. Patane.

The argument is that there was only a "plurality" decision in Patane, i.e., while a majority agreed on the result, no five justices agreed on the rationale for that result. The implication is that, even if Patane were to be followed, it left SCOWIS free to do whatever it wanted in Knapp. Thus, it is wrong to say that Knapp failed to follow Patane because Patane lead nowhere.

This criticism misses the mark. The likelihood is that Patane did control Knapp and SCOWIS shifted the basis for its decision to avoid that possibility.

In Knapp, the issue was whether the physical fruits of a statement obtained after the police failed to make required Miranda warnings must be excluded. A cop was in Knapp's apartment and talking to him without giving the normal warnings ("you have the right to remain silent, etc."). In the course of this, the cop asked him what he was wearing the night before and Knapp nodded at a pile of clothes on the floor that included a bloody sweatshirt. The sweatshire was later found to be stained with the victim's blood. The cop later admitted that he intentionally held off on giving Knapp Miranda warnings while he was in the apartment.

The case went up to SCOWIS twice and, the first time, SCOWIS held that the bloody sweatshirt and the fact that the blood stains came from the victim ought to be excluded from the trial, relying on the 5th amendment of the US Constitution. (Note the italics; this is important.)It set aside Knapp's conviction.

The state appealed and SCOTUS vacated SCOWIS' judgment setting aside the conviction. It sent the case back to SCOWIS with instructions to reconsider in light of its recent decision in Patane. Although, as noted above, folks make much of the fact that there was no majority decision in Patane, the fact is that five justices held that it was not necessary to exclude physical evidence obtained after a failure to Mirandize a defendant. The plurality argued that it was unnecessary to exclude such evidence if obtained as a result of a Miranda violation and two other justices (Kennedy and O'Connor)thought it unecessary to determine whether Patane's rights were violated or whether there is "'anything to deter' [by excluding the evidence] so long as the unwarned statements are not later introduced at trial." But even they agreed that "[a]dmission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused's coerced incriminating statements against himself" and expressed doubt that the exclusion of reliable physical evidence could be justified by the need to deter violations of a defendant's self incrimination rights. Because reliable physical evidence is not testimonial, these five all seemed to agree, it is not necessary to exclude physical evidence even when Miranda has been violated.

Sending the case back in light of Patane was a fairly unsubtle hint that SCOTUS thought SCOWIS got it wrong. Now, maybe you can reconcile excluding the bloody sweatshirt with the views of a majority in Patane. One possibility might be to argue, as IT suggests, that the Miranda violation in Knapp was intentional and, in Patane, it was not. Indeed, when the case came back to SCOWIS, Justice Butler's opinion emphasized this very fact.

But that was uncertain to persuade the five SCOTUS justices who were in the majority in Patane. If Miranda is limited to preventing self incriminating testimony and introduction of physical evidence obtained as a result of an unwarned statement won't risk the introduction of such testimony, then, at least in the view of a majority of the Patane justices, it may not matter that the violation was intentional. (I also think that there is a question as to whether the sweatshirt was actually obtained as a result of the intentional violation, but let's put that aside for now.)In fact, it was one of the dissenters in Patane(Justice Breyer) who wanted to make the introduction of physical fruits turn on whether the cops had, even if Miranda was violated, acted in good faith.

All in all, not so promising.

But here's the important part. We don't know if SCOTUS would have accepted the "intentional violation" argument because, after SCOTUS sent the case back, SCOWIS decided to change up and base its decision on Article I, sec. 8 of the Wisconsin Constitution rather than the 5th amendment. It did so even though, prior to Patane and the SCOTUS remand, no one had thought to make such an argument.

Because the decision was now based on Wisconsin law, SCOTUS can't review it. There is no reason to make this switch unless you think that SCOTUS is not going to uphold your interpretation of what Miranda means here. On these facts, it seems fair to say that Knapp failed to follow Patane.

To the contrary, it seems that the argument that SCOWIS didn't decline to follow Patane is a bit of misdirection.

Is it fair to criticize SCOWIS for not following Patane in Knapp?

The second criticism that IT makes is that SCOWIS doesn't have to follow SCOTUS when it is interpreting a cognate provision in the Wisconsin Constitution. This is the New Federalism that we hear everyone talking about. Although it almost always does so, SCOWIS does not have to interpret provisions in the state constitution in the same way that SCOTUS interprets identical or similar provisions in the US Constitution.

But to say that SCOWIS can do something is not to say that they ought to and there is a vigorous debate among judges, lawyers and scholars as to whether and when this prerogative ought to be taken. So to criticize SCOWIS for not following what appeared to be the requirements of Patane is fair game.

The reason that New Federalism will be an issue in the campaign is that it is generally used by SCOWIS to adopt a more liberal view of the rights of criminal defendants. In fact, the seminal article advocating New Federalism was written by Justice William Brennan in 1977 to urge state supreme courts to adopt a more expansive view of certain rights than the US Supreme Court was then inclined to do.

Daniel Suhr is apparently not a fan of New Federalism. Perhaps IT is. But criticizing SCOWIS for adopting it is not dishonest or inept.

More to come.


Anonymous said...

Just to be clear, the one link to my blog you have provided in these two posts of yours leads to criticisms leveled by a third party at Daniel Suhr's own blog.

Seems he's got Suhr's number as well.

RobH said...

Mr. Esenberg,

Since I also have been attempting to set the record straight regarding Mr. Suhr's distortions of Justice Butler's record, perhaps I should jump in here as well.

Although buried in your post, you at least concede that the defining fact in Knapp was that the police INTENTIONALLY VIOLATED THE CONSTITUTION. Mr. Suhr's purported analysis ignored that fact and, instead, used passive voice to imply that the Court ordered suppression simply because Knapp made a statement before the police got around to Mirandizing him. That is distortion, plain and simple, and presenting that misleading kind of analysis in a brief would justifiably result in sanctions in virtually any court in the state.

Although attacking IT, you also admit that the U.S. Supreme Court in Patane in fact did not decide whether suppression is appropriate when, as here, the police intentionally violate the constitution to obtain evidence. Mr. Suhr insisted that the Wisconsin Court in Knapp acted contrary to precedent in Pantane. That, we know and you now concede, is not true.

You claim, however, that our Supreme Court ruled contrary to what you expect the US Supreme Court probably would rule if they ever got around to deciding the issue. Yet, the very meaning of precedent requires that the supposedly controlling decision PRECEDE the decision one is attacking as failing to give proper deference.

Like Mr. Suhr, you also choose to ignore the fact that "new federalism" is not simply some liberal fad, but is mandated by the Wisconsin Constitution. The judicial power of the state is vested by the Constitution in the STATE Supreme Court, not nine people in Washington, D.C. It is the Wisconsin Supreme Court that is obligated to determine the meaning of the Wisconsin Constitution based on the best evidence available. While it certainly can consider the analyses of other courts, whether the U.S. Supreme Court or the Supreme Courts of New York or the Philippines, the state court cannot constitutionally abdicate that responsibility by merely deferring to another court, no matter how many Federalist Society members may prefer that it did.

You also suggest that some signal should be divined from the fact that the U.S. Supreme Court remanded Knapp for reconsideration in light of Patane. Apparently, you don't do much appellate work, or you would know that such actions are routine when cases involving similar issues are pending before the Court at the time it issues a decision. Remand in such a case is not a signal of anything except the fact that (1) something about the recent decision might possibly have an effect on the remanded case and (2) the Supreme Court doesn't have the time or the desire to make that decision itself.

I also note, as I did in response to Mr. Suhr's unfair attacks on Justice Butler, that Suhr's views on the sanctity of precedent (like those of most Federalist Society members) seem, to say the least, quite situational. He reveres right-wing heroes like Justice Scalia, yet Scalia probably has voted to overturn more settled law than any other justice in our lifetime.

Of course, there is a reason why those opposing Justice Butler resort to such misleading analyses and false labels of "judicial activism." If they admitted that all they really had against Justice Butler is that they disagree with the results of some of his decisions, it wouldn't have the same political impact. It's one thing to have an honest disagreement over how a case should be decided. It is much more powerful, if far less honest, to falsely claim that your opponent is doing something evil or underhanded.

I don't know what you have taught Mr. Suhr so far, but he needs to learn that, as attorneys, we have an ethical obligation of candor to the court and to each other. Maybe there are different rules for law professors, but in the real world, one's reputation for fairness and honesty is all you have. Once you lose that, you might as well start applying to medical school.

Whether he ultimately learns ethics from you or from a few comments on his blog, the unfair attacks on Justice Butler reflected in his blog and distorted analyses of Justice Butler's decisions strongly suggests that he needs to put in a few more hours studying for that particular test.

He obviously is quite bright and a hard worker, albeit currently a bit misguided. I am hopeful, however, that he will learn that "honest conservative" does not have to be an oxymoron, despite what some of the rhetoric in this election would suggest.

Anonymous said...

Honest and ethical lawyers?


Rick Esenberg said...

Brother Henak

It's not the fact of remand, but what a majority of justices in Patane had to say about the relationship between Miranda and the introduction of nontestimonial evidence. You know as well as I that when you are attempting to determine whether a SCOTUS decision that did not produce a majority opinion controls the case at hand, you look to see whether a rule can be derived from what a majority of the justices agreed upon. In this case, it seems almost certain that the common ground between the plurality and O'Connor and Kennedy would result in admission of the sweatshirt nothwithstanding an intentional Miranda violation. In fact, the view that an intentional violation would merit exclusion was expressed by only a single dissenter.

It seems disingenuous to me not to admit the obvious: SCOWIS switched over to the state constitution so it would not have to follow what seems to be the federal rule and be subject to further SCOTUS review. Given what I take is your view of these matters, I imagine that you think that is a good thing.

I, of course, never said that New Federalism is a liberal fad. It could be put to conservative uses just as easily (how about some Lochner in Wisconsin?)as liberal ones. Young Mr. Suhr knows that because I discussed it in class and assigned an article written by none other than Chief Justice Shirley Abrahamson (who was gracious and generous enough to accept my invitation to come to Milwaukee and address the class)in which she makes that very point.

I have also made it quite clear that, as you reiterate, SCOWIS has the authority to depart from SCOTUS interpretation of cognate provisions. But if you mean to suggest that whether and when they exercise that authority is not controversial, you are just wrong. Daniel knows all the arguments for and against because I made him read law review articles and cases spelling them out. If you'd like some of the references, let me know.

I am not sure why you think that Daniel has accused Justice Butler of doing something "evil or underhanded." What he has done is criticize some of the court's decisions and argued that they are inconsistent with what he believes to be the way in which judges ought to see their function using some criteria that were set forth in a paper that I wrote and in a lecture by Judge Diane Sykes. (They are not quite what you seem to think we mean by judicial activism - a term that I try to, but can't always, avoid.)

I have tried to demonstrate that the way that he has put things is well within the parameters of acceptable argument and that the issues that he raises about the cases in question are fair and mostly spot on.

I have been very careful - on this blog, in what I have written elsewhere, on the WMC video and in speeches - to make clear that these issues are not a matter of "good v. "evil," "honest v. dishonest," or "competent v. incompetent." I readily concede that Justice Butler is a good and honest and talented jurist with whom I often disagree. I don't know as much about Judge Gableman (I've met him once)but he also strikes me as good and honest and smart.

Daniel has tended to use more excited language than I would, but I don't think he has framed the issue in those ways either.

So ... I'd suggest that you do the same. If you want to argue that Daniel is wrong or has failed to take into account some argument or another, go ahead. Maybe you believe - apparently unlike every justice on the state supreme court - that the sweat shirt could have been excluded consistently with the views of a majority of justices in Patane. But don't imply or suggest that he is dishonest or incompetent when you clearly don't have facts to make that case. You are right that reputation is important and he deserves not to have it unfairly maligned by you simply because he has chosen to speak out on the issues in a judicial election.

RobH said...

Mr. Esenberg,

The problem with dealing with a number of issues in a single comment at 1:30 in the morning is that it is easy to suggest that things as connected that are not.

My reference to Mr. Suhr's dishonesty was meant to deal solely with his dishonest explanation of the controlling facts in Knapp. (I assume that your suggestion that "the way that he has put things is well within the parameters of acceptable argument" does not cover that). Given that he obviously is quite bright, it is totally inexplicable that he could honestly read that decision and yet describe the violation at issue as nothing more than the police not getting around to Mirandizing the defendant before he blurted out an inculpatory statement. I stand by the fact that that kind of distortion will get him into serious trouble in the real world. To the extent that my comment can be read as suggesting anything beyond that, I apologize.

You're observation that the Knapp court did something underhanded by basing its opinion on the Wisconsin Constitution is off base. As you know, when one issue is controlling, courts regularly base their decisions on that ground without wasting time by addressing another issue that can have no effect on the outcome of the case. While you suggest that the Court should have addressed the federal issue as well, you presumably know that the U.S. Supreme Court will not take a case where a ruling can have no effect because the state court also relied upon an adequate and independent state law ground.

The point remains, as you again concede, that we cannot know what the US Supreme Court would do when finally confronted with an intentional Miranda violation. What we do know is that the Wisconsin Supreme Court did not fail to follow controlling precedent, which was Mr. Suhr's, and apparently your, point.

We can have a reasoned debate on whether any particular decision is good or bad. I personally believe that Justice Butler was wrong in many of the 98% of the Court's criminal cases in which he voted to uphold the conviction.

I appreciate your concession that Justice Butler is a good, honest and talented jurist. Too many of those supporting his opponent are unwilling to make that concession.

Like you, I do not know Judge Gableman, and can only assess his qualifications from his own campaign's words. I would like to believe that he is likewise a good, honest and talented jurist. It certainly would help if he would repudiate Mr. Schmitz' demonstrably false assertion that Justice Butler "consistently sides with criminals as opposed to law enforcement." Perhaps he already has and I have just missed it.

Rick Esenberg said...

For the record, I did not suggest that the court did something "underhanded" in switching to state grounds. I am suggesting that they did something that was calculated to evade federal review and avoid the implications of Patane. I may disagree with that (in fact, I do), but it is not "underhanded" and I never said that it was. Nor, as I recall, did Daniel Suhr.

What it does do is suggest issues around when the Wisconsin Supreme Court ought to depart from SCOTUS interpretation of cognate provisions.

Daniel Suhr, I guess, does not believe it ought to do that - or at least that it ought not to do have done so here. Debate that, but don't impugn his integrity.

As for calling out the intentional nature of the violation, my guess is that he did not do so because he does not believe, as a majority of the Patane court seems to, that it's not important when it comes to the admissability of nontestimonial physical evidence. You think it should be and so it's perfectly appropriate for you to raise it as the pertinent distinction that you believe it to be, But, again, it's way overheated to suggest that he has intentionally distorted something.

Daniel Suhr said...

I am happy to agree with Prof. Esenberg and Atty. Henak that Justice Butler is an intelligent, well-meaning and honest judge. I enjoyed his visit to Marquette Law School. Moreover, as a justice of the Wisconsin Supreme Court he is entitled to respect by virtue of his office - c.f. Romans 13 and 1 Peter 2:17.
However, the decisions and public statements of public officials are legitimate grounds for discussion and criticism. What I've tried to do on GOP3 is participate in that discussion by critiquing the jurisprudence prevalent in many of Justice Butler's opinions.

RobH said...

Sorry, but your attempted rationalization for Mr. Suhr's distortion of the facts in Knapp does not make sense. The fact that he didn't believe that the the intentional nature of the officer's violation of the constitution mattered would justify an explanation of that theory. It doesn't justify misrepresenting what the facts were to make it look like the Court was rewarding a criminal for an innocent blunder. Indeed, the fact that he chose to distort those facts suggests that he understood that they could make a difference to an unbiased reader. That is what I view as dishonest about his analysis. You apparently believe it is acceptable. So be it.

As for the question of whether the Wisconsin Supreme Court is obligated to go in lock step with the US Supreme Court (as Mr. Suhr apparently believes) or whether it is obligated under the Wisconsin Constitution to make an independent evaluation of the meaning of state law is, as you note, a matter of debate. That, of course, has been exactly my point, and I am glad that you agree with me.

My problem has been the attempts by Mr. Suhr and others to claim that this is not an honest difference of opinion but rather, that Justice Butler is somehow acting inappropriately by doing what the Wisconsin Constitution requires him to do - make an independent evaluation of the meaning of state law.

RobH said...


I did not see your post before posting my last comment. I understand that you are trying to add to the debate. I respect your obvious intelligence and hard work on your analysis of Justice Butler's opinions, even though I disagree both with your conclusions and much of your analysis. As I have noted before, however, I am terribly concerned about the distortion of the facts in your analysis of Knapp, the only case I have gotten around to doing a reality check on.

You obviously have the capability to be a very good lawyer, IF you do not let your biases interfere with your judgment. I do wish you well but will continue to debunk what I view as unfair attacks on Justice Butler.

Dad29 said...

Scalia probably has voted to overturn more settled law than any other justice in our lifetime. favor of such small principles as Common Sense and Real-World Understanding.

Oh, how frightful!!

Dad29 said...

Please allow a comment from the Great Unwashed...

Do you mean to tell me, R Henak, that when the cops find a pile of clothing bloodied with the blood of a victim, that the owner of said pile should not be held accountable for a crime which perfectly explains the blood on the clothing and which the cops are investigating?

Do you mean to tell me that all of that was purely co-incidence? That is, that the cops "just happened" to choose that particular person's apartment, or that the blood "just happened" to be kinda 'zackly where the cops expected it to be?

Seems to me that you'd like to re-write the laws of probability, too. Let me know when you're in Vegas; I'd be happy to bet against you!

RobH said...


I am sorry, the reference in my last comment was supposed to be to "political biases." I did not mean to suggest that you are biased in general.


Certainly, someone who breaks the law should be held accountable, SO LONG AS IT CAN BE DONE CONSISTENTLY WITH THE LAW. The officers in Knapp, however, intentionally chose to violate the constitution. Unless the constitution is to become but a "parchment barrier" (Judge Easterbrook's words, not mine), suppression (not dismissal) is necessary to deter such conduct.

Probably the best explanation of why a civilized society cannot tolerate police simply ignoring the law as in Knapp is A Man for all Seasons:

ROPER: So now you'd give the devil the benefit of law?

MORE: Yes. What would you do? Cut a great road through the law to get after the devil?

ROPER: I'd cut down every tree in England to do that.

MORE: Oh, and when the last law was down and the devil turned on you where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down - and you're just the man to do it - do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.

Dad29 said...

"The benefit of the law," Rob, is ordained to the benefit of society as a whole; lacking that, the speech is Jesuitical at best.

Incidental non-Mirandizing is not the substantive issue here. The bloody clothing IS.

Anonymous said...

Talk about the proverbial head banging against the proverbial brick wall.

Yes, deliberate, intentional -- or "incidental" as one might have it -- non-Mirandizing is precisely the issue here. Oy vey.

RobH said...


I think that you miss the point of the quotation from Man for All Seasons, as well as the rule of law.

The reason why we cannot make the kind of exceptions to fundamental legal principles that you suggest is that there is no logical stopping point. If we allow police officers to take the law into their own hands because we "know" that someone is guilty, then why don't we allow common citizens to do the same? Also, how do we "know" that someone is guilty without a fair trial governed by the rule of law?

For the rule of law to benefit society as a whole, therefore, its benefits must be granted to all of us, including those who you may believe to be unworthy. It we are to start picking and choosing who is worthy, who is to do the choosing? If we follow that path, there will come a day when the benefit of law won't be granted to any of us.