Monday, March 31, 2008

An endnote on the numbers

I've got to go and do a radio interview (WWIB in Chippewa Falls if you get it) and teach CivPro, but I wanted to bring into one post one final response to the few critics of what I'm saying about the dueling numbers. There's a lot of sturm and drang here, but, essentially, I am still waiting for responses to the following:

1. The Butler campaign, not Jessica McBride or CFAF, produced a list of 70 cases which contained a key at the top identifying cases as ruling for or against an inmate. In other words, the list claims to do what McBride's critics are all over her for doing.

2. The characterization of cases as "for" or "against" the defendant is wrong. It counts, for example, a case in which the court threw out the confession of a juvenile and ordering a plan for the supervised release of a sexual predator as being rulings "for" a defendant/inmate.

3. We could just look at convictions, but we'd leave out a lot of relevant cases. In any event, it doesn't make much sense to count up convictions because not each conviction constitutes a separate decision.

3. But let's do it anyway. The list does purport to contain a count of convictions upheld or overturned. But when we look at that, we also find it to be wrong. Many of the cases - over 40& - simply didn't involve the question of overturning or upholding a conviction.

4. Even if we look at the 39 cases that the list refers to as involving "convictions", we find errors. Some are counting mistakes. Others are mischaracterizations. The Jerrell case for example is counted as upholding convictions. Another case, in which a defendant is granted an evidentiary hearing on a motion to withdraw three guilty pleas, is counted as upholding the convictions.

5. I have argued that the absolute number is kind of fun but not too helpful. What we really need is to compare the Justices in order to get at differences in philosophy. No one has done that with the conviction number.

6. But Jessica McBride says that she has with the "against" and "for" numbers. Let's take her at her word. Do we doubt that the relative numbers that she generates constitute actual differences?

7. The various criticisms of her analysis have varying degrees of merit. One is that she excluded cases that the court did not count as criminal. Some of them are relevant. But to count them, you can't just take the ones on the Butler list. You have to take all of them and to do that, you are going to have to go over the court's entire docket for four years. Has anyone done that?

8. And, more fundamentally, is there any reason to believe that these cases will change the relative rankings. The Butler campaign mischaracterizes at least three of the nine "noncriminal" cases. Even if we include the ones selected, it won't change much.

9. It's also true that some cases are more important than others. But is there any reason to think that, say Justice Butler, will be more likely to rule for defendants in minor cases? If not, throwing them out (even if we could find an objective way to do it) won't change anything.

10. Do we really doubt that the relative ranking that is generated does not conform to reality.

Some thought on judicial activism

I have sort of a love/hate relationship with that term. It gets misused a lot. I'd prefer to replace it with something else, but we don't always get to choose our language. In speaking to my Wisconsin Supreme Court last fall, Chief Justice Abrahamson saif it was a "slur" that was "meaningless." I agree that it can be used in that way, but I think that she left most of my students unpersuaded.

I made preliminary efforts to address the issue in the Wisconsin context here and here. Judge Sykes' 2006 Hallows Lecture at Marquette University Law School is masterful. I tried to show what types of issues may be affected by these and other philosophical differences here.

I just want to hightlight a few cases that demonstrate what we are getting at. This issue is a harder topic for general debate but it's important to keep in mind.

Dairlyland Greyhound Park v. Doyle

The case is, of course, complicated but not so much so that it can't be understood and distilled as follows:

In the early '90s, the voters passed an amendment banning casino gaming in the state. At the time the amendment was passed, there were compacts between the state and certain Indian tribes permitting such gaming on reservations. The compacts continued in place after the amendment was passed.

After Jim Doyle was elected governor, he entered into renewed and amended compacts which comprised an enormous expansion of casino gaming in exchange for large amounts of tribal cash. He wanted it to close one of our perpetual budget holes.

In Panzer v. Doyle, a 4-3 majority held that he could not do so, holding that the new deal ran afoul of the amendment and certain other legal limitations.

Then Diane Sykes was appointed to the federal bench and Louis Butler was appointed by Doyle to replace her. On the court's docket was Dairlyland in which a dog racing track argued that the amendment actually compelled the governor to issue a notice of nonrenewal of the original compacts. The question of whether gaming could be expanded was not part of the case.

But the Court decided to revisit Panzer anyway and, in a 4-3 decision, reversed itself with Justice Butler as the swing vote and author of the majority opinion. The court wound up holding that an amendment which said that all casino gaming was prohibited actually permits the governor to agree to unlimited expansion of gaming as long as it was done by amending the pre-existing compacts.

That's a tough decision for a textualist in the mode of Scalia. In so holding, the Court suggested that it would be a violation of the US Constitution's prohibition of impairment of contract to prohibit parties from amending a contract in a way that they may have wanted to before the law prohibiting them from doing so.

You will never see the court say that again. If it does, there will have to be a conservative judicial revolution installing justices with a commitment to property rights that is not shared by any current member of the US or Wisconsin Supreme Courts.

There are thoughtful people who think this type of thing is an appropriate use of the judicial power. Others see it differently. Maybe casino gaming is a good idea. Maybe you can find a way to reconcile unlimited tribal gaming with a constitutional amendment that says no gaming. But you can't do it, as Judge Sykes says, without "departing from some familiar and long-accepted principles that normally operate as constraints on the court’s use of its power ...."

Sunday, March 30, 2008

Is everyone the same on criminal justice issues, wrap up

To sum up, we've had a lot of conflicting calculations of how often Justice Butler has and has not ruled for defendants in criminal cases. Contrary to the assertions of Illusory Tenant and other members of the defense bar, academics calculate numbers like these all the time for various purposes.

This type of analysis is not counting cases as "right" or "wrong." It's not, despite loose use of language, even counting them "for" or "against" Justice Butler. It isn't, although some slip into the language, even counting cases as "pro" or "anti" "criminal."

Empirical studies like this are not going to capture everything that more traditional doctrinal study (i.e., analyzing the arguments for or against a position) does and it can't replace it. But if you look at enough cases in an evenhanded way, it can reveal a pattern that reveals doctrinal differences among justices.

"Among" is an important word. The key is not whether Louis Butler voted to uphold the claim of a defendant 25%, 48% or 58% of the time. We can think that any one of these numbers sounds high or low, but how are we really to know? Maybe we have a state full of blundering constables and the Supreme Court has needed to clean house.

This is where (and now I am going to cause my lefty readers to spasm again), Jessica McBride advanced the conversation. She she did a comparative analysis. That analysis showed that Justice Butler voted to uphold at least one claim of a criminal defendant in a case 2 to 3 times as often as Justices Prosser, Roggensack and Wilcox. Even though I adjusted her number for Justice Butler downward a bit, from 58% to 49% - those stark differences remain.

That tells us something and neither IT nor any of the hot and bothered anonymous commenters here have said one thing to contradict that. We can all differ on what it tells us. Maybe Justice Butler has a more enlightened view of the civil liberties of the accused. Maybe he reads those civil liberties too expansively at the expense of law enforcement. But one thing is sure. He reads them differently than Justices Prosser and Roggensack.

They have criticized the methodology. IT says that the cases have "a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration." True and, he didn't even have to say so, because I did in my first post on all of this. But, for these purposes, it doesn't matter. Sometimes we want to hone in on details. Sometimes we want to step back and see the big picture. Here, we see Louis Butler is three times as likely to uphold a claim of a criminal defendant that Patience Roggensack. Obviously, Justices Butler and Roggensack see things differently. Yes, there were certainly subtleties in all of these cases but we treated both Justices Roggensack and Butler the same and we had enough cases that our big picture is still valid.

But shouldn't we count how many convictions were upheld. That's the point of prosecutions, isn't it? We certainly could do an analysis comparing convictions upheld and overturned. But there are problems with that. First, a lot of significant cases don't raise the question of upholding or overturning a conviction. The Mark Jensen case is an example. Second, if you do this analysis, you can't do it like the Butler campaign did it. You have to limit yourself to cases where the court actually addressed whether or not to overturn the convictions. No base hit if you don't come to bat. Third, it really doesn't make a lot of sense to count up the convictions when each conviction does not represent an actual decison point. If I decide to throw out one piece of evidence that overturns six convictions, did I really make six decisions?

And let's say that we an analysis of convictions. We would then need to do what McBride did. We'd need to compare all of the members of the court, Let's say Justice Butler overturned 25% of the convictions or, as I think may be more likely, something around 40%. Is that too high? Too low? How does he compare to the others?

It seems reasonable to assume that the comparison is going to look a lot like McBride's. It makes little sense to think the Justice Butler is three times as likely to rule in favor of a defendant's claims generally but no more likely to overturn a conviction. But unless you do this work, I don't think the conviction number means much.

But, they say, some of these "pro-defendant rulings" are weak tea. All the defendant got is some discovery or a new hearing. Again, that doesn't matter unless we think that Justice Butler is more likely to grant defendants minor relief yet no more likely to grant major relief. That does not sound plausible.

Finally, why did I spend time on this? Part of the reason is that I have been formulating some empirical research on the court and so this kind of thing has been on my mind. But, more importantly, there are differences in judicial philosophy that ought to be discussed. There isn't, in fact, "no one here but us Scalias" and the claim that there aren't significant differences on these issues misleads the public just as much as oversimplification of the issues in some of the particular cases.

Is everyone the same on criminal justice issues, part 7

A final coda to our analysis of the numbers. First, I have had a few e-mail exchanges with Jessica McBride and she makes an argument that I may have made too many adjustments to her numbers. First, she excluded three cases in which the Court originally granted and then dismissed a petition for review.

Illusory Tenant complains about CFAF doing that. But his suggestion that the dismissal of a petition is a ruling on the merits against the petitioner is wrong as a matter of law. He's assuming that the court wanted the defendant-petitioner to go away because they disagreed with his position on the specific questions of law for which review was granted. Maybe they did. But it is an elemental rule of law that the denial or dismissal of petitions for review are not rulings on the merits. In fact, the per curiam opinion dismissing the petition in Kasmarek says he just didn't address the issue that they granted review on so they couldn't reach it. It is, in this sense, just as if the court had never granted review and, since we are only dealing with cases in which the court afforded plenary review, she actually is reasonable in excluding them.

I included them because I was working off the Butler list of 70.

Incidentally, this illustrates why it makes little sense to look at the "97% of the cases where the court denied a defendant's petition for review. When they deny these petitions, they are making no judgment on the merits. The Wisconsin Supreme Court is not an error correcting court. It takes cases in which it feels the law needs to be clarified or important interests at stake. The overwhelming majority of petitions of all types are denied.

Jessica also excluded a motion for reconsideration in Grady. The Butler campaign wanted to count it twice and that seems wrong. Again, I included it because I was just adjusting the list of 70. In any event, if you count denied motions to reconsider (and they are almost always denied), you'd have to count all of them and that wasn't done.

If you make these corrections to my adjustment of her numbers, we get to roughly 51% or, if you exclude cases in which the state essentially conceded, about 49%

She has reasonable arguments for what she did in the other cases. There is a sense in which the cases that I excluded are ones in which Justice Butler took a more "pro defendant" position than the others; the Mark Jensen case being the prime example. But in order to do include cases in which the defendants' claim was rejected but the Justice Butler's ruling was, in some sense, more "liberal" than that of others, you'd have to read all 70 cases and do that consistently including cases in which the defendant got what he wanted but Butler's ruling was more "conservative" than others. What we are looking at here is whether the defendant got some of what he wanted. There is a sense in which Justice Butler's concurrence would have given something better than the majority but he asked that the exclusion be affirmed and he did not get that.

But more importantly, most of these adjustments don't affect the analysis. Because, as I have shouted into the virtual void, it is the comparisons that are interesting. The excluded denials of review and reconsideration were unanimous. Include them and you will lower Justice Butler's "pro defendant" percentage but you'll lower those of everyone else as well.

Saturday, March 29, 2008

Is everyone the same on criminal justice issues, part 6

Finally. a word on some of the comments to my look at these numbers.

Over at his blog, Illusory Tenant is running through a bunch of cases that he says are on CFAF's list and offering a range of commentary. Sometimes he argues that the case was rightly decided or that a conviction was not overturned. Other times he notes that conservative members of the court joined in. I agree with some of his obversations but none of them have anything to do with what I have looked at here.

The McBride analysis looks at nothing more than voting for or against a criminal defendant's claims. As I've said before, this is not all that unusual. Some of the claims may not amount to much, like being able to see a sentence report, but since the point of the analysis is to compare the members of the court, that doesn't really matter unless you think that Justice Butler is more likely than the others to grant minor requests for relief and not more substantial ones.

Conducting the analysis in this way may result in a higher percentage of pro-defendant rulings than other ways - but it will do so for each justice. I have said repeatedly that I don't care all that much about the number for any justice (because I can't tell what it means) but am more interested in how it relates to the numbers for the others.

That's one of the reasons why I don't think that there is much to the argument between whether you should count convictions upheld or overturned or do an analysis of claims. There is no reason to believe that Justice Butler would be more willing to vote for the claims of defendants unless it would result in the overturning of a conviction.

I have said that there are problems with how the Butler campaign reached its percentage of convictions upheld and no one has yet responded to that. To reiterate, if convictions are the denominator and the point is to show how often you voted to overturn them, then you must restrict yourself to cases in which the convictions were on the line. Counting a case in which you held that a defendant is entitled to a hearing on his motion to withdraw a guilty plea as upholding the three counts that he pled to is silly. Overturning or upholding them wasn't the issue.

But is there really any reason to believe that if we did apply this conviction methodology to all of the justices we wouldn't get the same ranking ?

Some commenters have said "How can you trust McBride?" I am not sure why I'm not supposed to be able to do so but, the fact of the matter is that I am only trusting that she did her math right with repect to the other justices. I've looked at how she handled Justice Butler and said that it looks like it is mostly correct by the terms of her methodology with a few, in my judgment, errors that bring her number down from 58% ot 48%. (Those errors would affect the numbers for the others as well.) I ran the number to see if she was doing what she said she was but, again, what is most interesting here are the differences between members of the court and not the number for any single justice.

Illusory Tenant says that McBride is doing the same thing that CFAF did. Since he won't show us what CFAF did, I can't comment on that. But it seems clear that she did not do the same thing as CFAF. For example, IT claims that CFAF counts Mayo as a ruling for a criminal defendant. That would be wrong. McBride doesn't do that. And I certainly did not do that in checking her numbers.

Finally, some commenters suggest that I am endorsing McBride's use of the term "pro-criminal" or suggestions that the Butler campaign lied. I am doing neither. I don't think that the term "pro-criminal" is appropriate because 1) defendants are not always criminals and 2) it suggests that a justice has a "pro-criminal" bias which I think is a misleading way to describle people who have a judicial philosophy that is more favorable to defendants.

Nor do I accuse anyone of deceit as I have repeated and repeated. One commenter did not like my phrase "cooking the numbers" because, to his ear, it sounds like accusing someone of lying. Maybe he's right but that wasn't my intent. I think someone tried very hard to get a very low number and may have allowed that desire to get in the way of his or her better judgment. (And let's acknowledge that the candidates don't do this work. Whatever the merits or flaws of the Butler campaign's analysis, the work was done by a staffer.)

Friday, March 28, 2008

Is everyone the same on criminal justice issues, part 5

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.

Is everyone the same on criminal justice issues, part 4

What do these numbers mean? There are a few possibilities. Differences among the justice could reflect an unthinking bias either in favor of or against criminal defendants. They could reflect a willingness on the part of some justices to take heed of public opinion which, conventional wisdom holds, is hostile to (and undervalues) the rights of criminal defendants.

Those explanations are possible but I think they are wrong. My own view is that these differences reflect different philosophical bents. Justices who rule more frequently for criminal defendants may be more skeptical of law enforcement. They may balance the tension between public safety and the desire to avoid wrongful convictions differently than justices who are less likely to rule in this way. They may adopt interpretive techniques that privilege the claims of the accused or that are more likely to credit claims made by groups such as the Wisconsin Innocence Project.

There is more to these differences than whether they result in more or fewer rulings in favor of criminal defendants. But we can't begin that discussion without acknowledging that there are differences. To suggest that, in deciding these cases, justices are just mechanically applying the law or that there is no difference between judges on these questions (no "liberals" and "no conservatives" if those are the terms that we want to use) is just wrong.

There are big differences and the public is entitled to know that. To deny what every lawyer in the state knows to be true, i.e., Louis Butler is significantly more liberal on criminal justice issues than other justices such as Prosser, Roggensack and, prior to his retirement, Wilcox, is a deception.

Is everyone the same on criminal justice matters?, part 3

Jessica McBride has undertaken just the type of comparative analysis that I think is most illuminating. She has explained her methodology - she looked at all criminal cases and calculated the percentage in which each Justice voted in favor of a defendant's claim.

She finds that Justice Butler voted to do so more than any other Justice but the Chief and that the differences are significant. He voted in favor of a claim presented by a criminal defendant in 58% of the cases. Justices Prosser, Roggensack and Wilcox did so in less than 30% of cases.

A couple of preliminary points are in order. First, the question here is not who was right in these cases. What we are trying to do is determine whether there is a difference in philosophy (or some other factor affecting the likelihood of ruling in favor of a criminal defendant)among various justices.

Second, it doesn't matter if, in these cases, a Justice also voted to deny relief to a criminal defendant as long as we calculate the number in the same way for each Justice. This is because we are not making a claim about any individual case (i.e., the question is not did the defendant win or how much did he win) but simply looking for aggregate differences among the justices.

For those of you are convinced that there is something illegitimate about this type of analysis, it's not all that unusual. To give an example close to home, my colleague Jason Czarnezki (soon to decamp for Vermont) did some work in which he attempted to assess whether justices' voting patterns were affected by the proximity of elections and certain other factors. To so, he coded votes as in favor or against a criminal defendant's claims. He then was able to characterize certain justices' voting patterns in criminal cases as "conformist" (by which he meant having a tendency to vote against defendants which would be in conformity with public opinion) and "moderate" or "nonconformist." He then looked at how these patterns were affected by things like an approaching election.

The assumption is that, if you have enough cases, differences in aggregate numbers mean something. Justice Butler is not three times as likely to vote for the claim of a criminal defendant by chance. There is some type of difference in approach between them. Just what constitutes that difference and what conclusions you draw from it is another matter.

McBride's numbers are, of course, consistent with what any lawyer who is familiar with the Court will tell you. Chief Justice Abrahamson and Justices Butler and Walsh Bradley are easier sells for criminal defendants on appeal.

Two questions remain. Did McBride get the numbers right and what do they mean?

I have to go and judge a moot court practice now so I'll try to get to that this afternoon.

Is everyone the same on criminal justice issues, part 2

But then our friend Illusory Tenant said that, notwithstanding what the document says, we aren't supposed to look at it in terms of ruling for and against the defendant. We are supposed to count up all the criminal convictions before the court in these cases and see how many were overturned and how many were upheld. Then, we will see, the Butler campaign's numbers are right. This, he points out, is what all the little numbers on the list (e.g., "2:0")are supposed to mean.

At first blush, this doesn't work. The list contains cases in which there was no criminal conviction although maybe you could say that an adjudication of delinquency or a civil commitment is the equivalent of one, although if you do that, the campaign still has it wrong. It contains a number of cases - actually quite a few - in which there was a criminal conviction or charge, but overturning or upholding it was not the issue before the court.

Again, despite all the self congragulation in the left blogosphere about "hilarity" and Jessica McBride's supposed status as an amatuer, no one has responded to that either.

It may be the case that, notwithstanding the document's key and notwithstanding the inclusion on the list of cases that don't involve upholding or overturning convictions, the campaign only calculated its numbers using those cases that did.

In the descriptions next to each case, some are listed as cases involving convictions and, if you limit your self to those and add up all the counts, you get a number that approximates the campaign's claim, but there are still problems.

The largest is that the notion of adding up counts is silly. It would mean something if, in cases with multiple counts, the court was always separately considering each count and making an independent decision on each. There are a few cases in which that happened but, for the most part, the issue before the court was common to all of the counts. So, for example, the Manuel, Ford, Nelis and Mayo cases may have included 15 counts, but the court did not consider 15 issues. If you have a case with four counts and the question before the court is whether or not a single piece of evidence that supported the conviction on all four should have come in, it's not particularily meaningful to say that the court ruled four times for the defendant if it decides that it should not have.

To give a simple example. Let's imagine a justice votes to overturn a six and ten count conviction because, in each, there was a single warrantless search. She then votes to uphold eight convictions each of which has a single count. Does it make more sense to say that she ruled to overturn convictions 67% of the time or is it more accurate to say that she voted to uphold them 80% of the time?

That's an extreme example but there is something of that effect here. The multiple count cases are, with one exception, almost all in the "voted to uphold" column.

Putting that aside, there are still problems. I looked at 14 of the cases in which the list says there there were convictions at issue. In some (e.g. Parent), there were not. In some of these, one could say that there was something analagous to a conviction but Justice Butler voted for the equivalent of overturning the conviction, e.g., to set aside the adjudication of delinquency in Jerrell or to release the civilly committed sexual predator in Brown. (Remember the fact that he has not yet been released is not because the Court did not rule that he should be. It did.) If we count these cases by analogy, they need to be moved over to the "overturned" column and, since we are added up multiple counts, we would need to do that as well.

There are other problems in the sample of cases that I looked. Some (Campbell, Hale and Muckerheide) overcount the number of convictions that were at issue. One (Armstrong) fails to include a second count that was also overturned. There is at least one case that is not identified as a "conviction" case (Knapp) that was.

So again it looks like the number is wrong but we'd have to redo the analysis to know how far off it is. Depending on how you treat the errors that I found, they alone might move the number close to or over 40%. I doubt that the number would reach 50% or 60%.

But that alone wouldn't tell us much. Maybe 40 or 50 or 60 percent of the convictions should have been overturned. Is Justice Butler taking a more expansive view of the rights of criminal defendants than others? To get at that, we should probably do more than count up convictions and see what was left standing and, most importantly, we need to compare what his record to that of the others to see if there is a difference in philosophy or just a lot of blundering constables.

Is everyone the same on criminal justice issues? Part I

Unfortunately, this is going to take a while, so I am going to break it up.

Let's start by reviewing the bidding. We in Wisconsin have been faced with wildly divergent claims about Justice Louis Butler's propensity to uphold the claims of defendants in criminal cases. His campaign cites one number (25%) and the Coalition For America's Families cites anoter (60%). Who are we to believe? And what do these numbers mean anyway?

Let's start with the last question. Taken alone these numbers are interesting, but of limited value. It's not always wrong to rule in favor of the claim of a criminal defendant. Sometimes the defendant shold win. We can try to place some value on a number but it will be most meaningful in comparison with other justices. There is where we might begin to get at differences in judicial philosophy.

Until recently, no one has run comparative numbers. I have not had the time to do so. But Jessica McBride has and her effort has, I think, moved the converstion to the next level.

I understand that, for my lefty readers, this is not supposed to be possible. Jessica (who I think I have met once) is supposed to be a partisan hack attack dog. She once anglicanized a french word. She made a bad joke about Eugene Kane.

But, unlike Illusory Tenant who has claimed he would do something that the rest of us could respond to, she actually has.

I am not yet prepared to say that she has got it just right and she uses language that I would not. I also think that any claim about the influence of the pending election requires more analysis. But she has actually advanced the ball further than anyone else, so Whallah!

But before we get to that, let's review where we have been.

This list has apparently been produced by the Butler campaign. On the top, as you can see, it has a "key" which says that shaded cases are those in which the Justice "ruled for the defendant/inmate." Their words, not mine.

If that is what it's supposed to show, then it is wrong. McBride came up with some examples of cases that could not reasonably be characterized in the way that the campaign characterized. I mentioned a few others. I said that I did not know how wrong it was but when a quick look at something reveals numerous errors, it doesn't inspire a lot of confidence.

No one has actually responded to those criticisms. They have tried to say that the mischaracterized cases were rightly decided. They have said that some were unanimous. They have said that cases that were not criminal have been the subject of ads criticizing Justice Butler and should be included (although the campaign still gets them wrong).

But none of that meets the point we are concerned with here. The document claims that Justice Butler ruled for the "defendant/inmate" in less than 30% of the 70 cases listed. That is clearly wrong. The number is higher.

Thursday, March 27, 2008

Musings on judicial campaigns

Yesterday afternoon, I had the opportunity to participate in a telephonic press conference with Kelly Ann Conway, President of the Polling Company. The conference was timed to coincide with the release of my white paper and a poll commissioned by the Federalist Society on attitudes of Wisconsin voters toward the state Supreme Court and certain issues around the role of the judiciary.

In the course of the conference, one member of the media asked about the emphasis on criminal law in the Supreme Court election, noting that ads focused on such issues are often run by groups, i.e., WEAC, WMC, etc., that do not seem to have criminal justice issues among their core policy concerns.

That seems true - in part. Criminal justice issues get overemphasized in these races because that is what the public responds to. Criminal law is what the people associate with courts. I agree that this can distort the conversation. In fact, I would argue that the most problematic decisions recently issued by the court (with the exception of Jerrell C.J. and the gun amendment cases) are not criminal law or juvenile cases.

But there may also be some substance to this. As a general rule (and nothing here is always true), judges identified as conservative (or liberal) on criminal issues are also conservative (or liberal) on other issues. The cynical way to view this is that all judges simply allow their politics to dictate their decisions, but I think it's more complicated than that.

During this period in legal history, it tends to be those judges with sympathies that are politically liberal who adopt interpretive approaches that tend to provide them with greater, rather than less, discretion. There is no law of nature that requires this to be so and it hasn't always been this way. It is, I think, a by-product of an entrenched emphasis within legal education on matters of policy and the use of the law to achieve political results.

Again, this is not an ironclad rule. We can find exceptions and to say that some judges regard themselves as having a greater degree of discretion does not not mean that they believe themselves to have complete discretion.

Often, this greater degree of discretion is informed by a view of the courts as charged with special solicitude for the interests of those who are thought (sometimes rightly and sometimes wrongly) to be unable to fend for themselves in the political process. Thus a judge with greater sympathies for criminal defendants may have less sympathy for business.

Thus, we ought not to be surprised if groups looking to elect judges who are less hostile (or more sympathetic) to business might wind up supporting judges who are also seen to be, in various ways, tougher on crime. It isn't that they support "tough on crime" judges who will then support their interests out of a sense of indebtedness. It's that they support candidates who have an overall approach to judging that results in a narrower interpretation of the rights of criminal defendants and a reluctance to interfere with the political process or interpret legal authorities to further the favored outcomes of what Justice Scalia called the "law-profession culture."

Having identified those candidates, those aspects of their judicial philosophy that polls the best - a sense that they are "tougher on crime" - gets emphasized.

Because those involved in judicial elections do not believe that there is any politically viable option to a "tough on crime" approach, those who want judges who are more likely to be sympathetic to the interests of the political left need to either portray their preferred candidates as tough on crime or attack the "toughness" of their preferred candidate's opponent.

So there may be a method to this madness, but, of course, I would like to see a broader conversation and I am not sure that you can't have one. Much of what you see in judicial elections (and every other kind) is poll driven. Is it possible that in a low interest election there is a greater opportunity for campaigns to shape attitudes - given that they are loosely held. Unfortunately, it may be just the opposite. Because the elections are low interest, you can't get people's attention long enough to shape attitudes.

Tuesday, March 25, 2008

Shark audio

I can't imagine that it is of much general interest but, just for drill, I 'll let all know that you can listen to my SCOTUSCast on the recent U.S. Supreme Court decision in Federal Express v. Holowecki on the Federalist Society's national website.

Everyone's Business: Emerging Issues in the Wisconsin Supreme Court

My latest white paper has just been published by the Federalist Society and is on line here. Some commenters on this blog have been interested in my relationship with the Federalist Society. I am part of its State Courts project which attempts to raise issues about state supreme courts often in conjunction with a supreme court race because that is when the public is interested. The Society takes no position on the races and that is why I decided not to endorse or be involved in any campaign - both in 07 and now.

This blog is not part of that effort, although there is obviously a great deal of overlap between what I write here and what I might do as part of the Federalist Society's project.

One of the things that the Society often does in connection with its project in the various states is to engage an academic or practitioner to write a white paper. I did that last year on judicial restraint and this year on emerging issues before the Court. Because that takes a lot of time, the Society offers an honorarium and some money for research assistance.

But the Federalist Society does not tell me what to say and does not edit my work - apart from being kind enough to catch a few typos and other small things. The views expressed are mine and mine alone as are any errors.

This year's white paper does not, if I recall correctly, even contain the words "Butler" or "Gableman." The point is to offer some areas where the Court is about to or might act - in the interest of educating the public about how important these elections are. The discussion of those issues is fairly descriptive, although there is some editorial comment.

Finally, a point of clarification. I know that one reader of this blog has contacted the Milwaukee Federalists to ask them to comment of the fact that I was being "paid to comment on issues in the Supreme Court race." That's not really accurate. First, my relationship on this is with the national office, not the Milwaukee Chapter and, second, what I have been or will be paid for is to write this white paper and last years.

Jeremiah was a prophet?

Further to the what Kinky Friedman calls Obama's "Pastor Disaster," there has been an interesting exchange on the fantastic site Mirror of Justice. Greg Sisk begins it by reflecting on black liberation theology, exemplified by theologian James Cone and practiced by Jeremiah Wright. In Sisk's view, it often goes beyond the identification of injustice and the call for change to the incitement of hatred. He cites Cone's oft-quoted call for a God who hates and destroys:

If God is not for us and against white people, then he is a murderer, and we had better kill him. The task of black theology is to kill Gods who do not belong to the black community. . . . Black theology will accept only the love of God which participates in the destruction of the white enemy.

For Sisk, there is a distinction between anger and hate. He contrasts Cone with Martin Luther King - something that I also do in my Law & Theology seminar.

In response, Eduardo Penlaver makes the whiteness as metaphor argument. When Cone refers to whites, he is referring to a system of oppression and not to individual white persons or even white people generally. He notes that Cone is often moving and prophetic.

I actually agree with the last sentence. As I think I have mentioned on this blog before, I cited Cone in a forthcoming law review article on the exclusion of worship from limited purpose public forums. I use him on the proposition that worship can have profound temporal implications, as it did in the segregation-era black church.

But I'm with Sisk who wries, in response, that "[w]hatever may have been originally intended when the theological terms were being defined in the quiet of an academic office, such rhetoric cannot be contained, especially when introduced to the public.

Most recently, Michael Perry posted this column on Wright by noted Lutheran theologian Martin Marty on his experience with Wright and Trinity Church. Marty found much to like about Wright, so much that, incredibly, he chooses to describe Wright's "fantasies about the U.S. government's role in spreading AIDS" as "distracting," ablbeit "harmful."

I find something slightly condescending about that. In an earlier post, I spoke to the racial etiquette that often distorts conversations about race. There is a notion that white people, to assuage their guilt and prove their good faith, must be "understanding" of exaggerated claims of injustice or, as in this case, crackpot theories of racial malevolence. One of the reasons that conservative talk radio is routinely branded as racist is that it fails to abide by this etiquette (although there are s few talkers who do come to the label honestly.

Marty notes that perhaps Jeremiah Wright was trying to live up to his name, acting as an Old Testament prophet who curses the enemy and calls upon God to strike them down.

Fair enough. The prophets are a major part of the Judeo-Christian tradition. But, for Christians, the Old Testament is not the end of the story. Nor did history stop on the Edmund Pettus Bridge.

What is troubling about Jeremiah Wright is that, notwithstanding all the good that he has done (and I am sure that it is considerable), the incitement of racial resentment and the preaching of a world in which you can't win harms, rather than helps, his congregation.

What is troubling about Barack Obama - what makes all of this an issue - is that he does not appear to have seen that until he wanted to be President.

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.

Sunday, March 23, 2008

Have a Blessed Easter

Today Christians around the world celebrate the promise of redemption. We believe - even if we don't fully understand - that an extraordinary thing has happened and can and will happen again. It is an audacious hope that many of us on the left and the right share.

So for today's musical selection, I leave with you with Allison Kraus.

And I commend this article aboout my church for which I just completed a two year stint as Senior Warden. Come by and see us sometime.

Saturday, March 22, 2008

Give me a break

Update: The Brawler has apologized and I do too if I was overly sensitive. We're cool.

OK, I admit that I do it. I google myself. It's worse than that. Sometimes, I google myself to see what has come up in the last week or so.

Tonight, while I was hoping that Marquette would solve the Lopez twins ( t'were not to be), I came across the Brew City Brawler (tough guy who won't blog under his own name) relying on an old post of mine to imply that - oh, he doesn't want to say - I'm a racist or "freaky" have "poor judgment" on such matters. Something bad anyway. He is so taken with the idea that he posts on it twice.

I have no idea who this guy is, but he's just a tad slow on the uptake. The post referenced some commentary by Will Saletan at Slate (most definitely not on my team) regarding research on the relationship between things like race and IQ.

My point was that, if you are a materialist who believes that we are the sum of our genes (note to Brawler: us guys on the "religious right" aren't exactly down with that), then there is really no way to exclude that possibility. Scientific truths are always contingent and denouncing people who raise questions seems like a matter of faith.

The obvious point is that we all have scientific questions that make us uncomfortable - and for good reason. I noted the obvious dangers of the view that things like intelligence are not evenly distributed across groups. Williams Jennings Bryan (who actually was, as were many of his day, a racist) objected to evolutionary theory in part because he feared it would lead to Social Darwinism.

I expressly said that I did not know if Saletan was right in suggesting that there may be scientific support for the idea that the distribution of characteristics like a high IQ might differ across racial groups. It's not surprising that I did so because my larger point was that it doesn't matter.

I went on to point out that, even were it proven to be the case that IQ is largely genetic and that genes are not evenly spread among racial groups, it wouldn't mean much. This is where I said that averages apply to groups and not individuals, a concept that the Brawler claims not to understand.

I guess he didn't attend (as I did) St. Sebastian's, because, if he had, he would know that it takes a group to have an average and that the average for the group does not tell you anything about any particular individual within it.

So, I concluded and paraphrase here, even if someone someday were to locate a gene for mathematical brilliance and show that it is disproportionately expressed in Indian males, that wouldn't tell us anything about any individual and could not form the basis for admitting people to grad school in math.

For this, I get smeared by an anonymous blogger who must believe that any libel is justified by the quest for Obama.

Oddly, in his second post, he cuts and pastes from someone he calls the great "Daniel Davies" who makes, essentially, the same point that I did. You can't exclude the possibility of such differences but they are unlikely to matter. I guess Davies hasn't criticized Obama.

Brawler wants to know what I mean by a racial etiquette getting in the way of frank conversations about race. You just provided a perfect example, buddy.

More, more and more on the numbers

Illusory Tenant thinks he has the key to the mystery of the Butler's campaign's claims about how often he does or does not rule in favor of criminal defendants. He seems to be saying that, in all the cases in which the court considered something that the campaign wants to call a criminal case, convictions were overturned only 30%of the time.

That's an odd claim. A number of these cases did not involve decisions whether or not to uphold criminal convictions or, in the event, did not reach that issue. To use them as the denominator in which overturned convictions is the numerator would seem to be misleading.

I agree that Jessica McBride probably wants to make Butler look "bad" in the sense of favoring criminal defendants. Illusory wants to make him look "good" in the sense of not doing so. Personally, I'm just interested in some accurate numbers honestly described, keeping in mind that they are not meaningless and not talismanic. Quite frankly, my professional interest (as in justifying my pay envelope) is more that you care about the Wisconsin Supreme Court than you agree with my take on it.

But, as out Illusory friend says, "here's the deal." Jessica McBride showed a list of cases in which the Butler campaign claimed that he had ruled in favor of the state and against the defendant 70% of the time. These are, as I understand it, the campaign's words and not hers and that is certainly what a number of media outlets have reported. That claim (which is far different than "I didn't vote to overturn a conviction") is clearly wrong.

Some want to know if I am, therefore, calling someone a liar. I very rarely do that here (although I am calling whoever runs Planned Parenthood's campaign against Jim Ott and others precisely that - stone cold liars). Having spent over 25 years as a lawyer, I have come to the conclusion that people are often flatly wrong while sincerely believing they are right. And, as much as I may differ with Louis Butler on legal matters, I have repeatedly said that I believe him to be an intelligent and honest man as I also believe Michael Gableman to be.

But the idea that Justice Butler does not have a more expansive view of the rights of criminal defendants than the more conservative wing of the court is preposterous and, if you will note the exchanges between me and our representatives of the defense bar, no one really disputes that. In fact, I am the one who has ventured the idea that I don't think his view of the rights of criminal defendants is quite as expansive as that of the Chief and Justice Bradley, although I think that proposition may require further study.

And, no, I don't think that the Court's criminal law cases are the most important issue in this race. In fact, that is the one area where I probably differ the least with the court's "emerging majority" (although I do differ). The most extraordinary usurpations of legislative and popular prerogative lie elsewhere.

Shark on TV

I'll be on Charlie Sykes' Sunday Insight tomorrow morning at 10:00 am on Channel 4. For those of you at church (I mean you, Tenant), be sure to set the DVR.

Friday, March 21, 2008

Obama's failure

There is part of me that wants to shrug over Barack Obama's reference to his grandmother as "a typical white person." Obama says he wants to encourage more candor in our conversation about race. My guess is that many blacks and whites hold on to assumptions about the "typical" black and white person and he's just being honest in revealing his own.

But having revealed his own racial presuppositons, what are we supposed to do about them. He's not apologizing so I take it that he believes that it is OK to say that he believes that white people "typically" have what I presume that he believes to be an unreasonable fear of black males. I assume that his defense of that belief would be that it is true. At least if there are not other reassuring social cues provided by things like age, dress and context, it may well be the case that many white people would be nervous about a young black male approaching them on a dark city street. It seems likely to me that the average white person - particularily one who is especially vulnerable in such circumstances like an older woman - would overestimate the danger that young black males pose.

But true candor about such things would probably eschew the promiscuous of the word "racist" in connection with both Obama's observation and the fact that he feels free to attribute it to white people generally. Our typical white person probably thinks she has good reason to be nervous. She may be well aware of the danger in applying racial stereotypes to individuals but that pales when she is listening to footsteps behind her.

On the other hand, if you are, say, a young black law student heading home from the library, it hardly reduces the injury of being presumed dangerous to be told that it's not personal.

And, if you are that young law student, you probably have reasons to be suspicious of the good faith of white people and may have come to overestimate the level of racial hostility you face. Like our white woman on a dark street, you know that it is unfair to presume the worst about others but racial injury stings and you don't want to leave yourself open to it.

Candor would require us to recognize and even, at least to some degree, understand these attitudes. But don't we want to struggle against them? Certainly we don't want others to feed these fears. This is one the reasons that some get upset by "Willie Horton" like political ads. They fear that they encourage racial suspicion.

But that's precisely ZRev. Wright's sin. He doesn't promote racial understanding but division. He isn't simply pointing to unpleasant truths, he's spinning tales that are designed to inflame rather than to heal.

We might be able to understand why he has come to this, but we should not accept it.

And that's what Obama did. He associated himself with the church and the man. He never condemned what it now seems apparent that he must have heard on a fairly regular basis. He never stood up for reason and healing. Until now.

What he needed to do in that pretty speech in Philadelphia is explain why.

Dueling numbers

Jessica McBride has now published the Butler campaign's revised list of cases in which he ruled in favor or against a criminal defendant. The list is supposed to support the campaign's claim that Justice Butler ruled in favor of a criminal defendant 75% of the time. (Actually, the campaign's characterization of the results seems to come to about 70%.)

As I have blogged before, there is limited value to numbers like this. They are best considered in comparison to other justices. Even for those with a fairly conservative view of these matters, sometimes the defendant should win. But the Butler campaign and a group opposing Justice Butler's reelection are offering us some numbers that are, to put it mildly, inconsistent. The Coalition for America's Families, for example, claims that Justice Butler rules in favor of criminal defendants sixty percent of the time. Sixty percent is a long way from 25%.

I don't how CFAC did it's analysis, but the Butler campaign, to its credit, has released it own analysis.

The problem is that a brief review of the analysis raises serious questions. Jessica McBride points to several cases that she feels were mischaracterized. I haven't run down all of them, but she seems clearly right with respect to at least some. Here are a few more based only on cases which I had some familiarity with. These are cases in which the Butler campaign apparently claims that Justice Butler ruled against the "state/inmate" The question here is not whether the outcome was correct, but if that claim is accurate.

Coleman v. McCaughtry - Coleman was an inmate who filed a petition for habeas corpus in 2004 arguing that he had been denied effective assistance of counsel when his lawyer failed to appeal his 1986 conviction. The issue was whether his motion came too late, more specifically, whether it was barred by a legal doctrine called laches that says, essentially, that you can lose your rights by sitting on them for too long. A majority of the court held that some of the elements of laches had been proven by the state, ie., that Coleman had unreasonably delayed in bringing the claim and the state had no knowledge that it would be brought. But Justice Butler disagreed and would have remanded the case for factfinding on those issues.

Coleman nevertheless got some relief because all of the justices felt that there needed to be factfinding on whether the state was prejudiced by Coleman's delay. So, we have a majority issuing a ruling that went against Coleman on two issues (his claim had been unreasonably delayed and the state had not known of it)but gave him a chance to contest the state's claim of prejudice on remand. Justice Butler would have given him a chance to contest the state's finding on all of three issues.

Of course, Coleman has no guarantee of success on remand. He may very well lose. But, clearly, in this case, Justice Butler ruled in favor of a convicted petitioner.

State v. Jerrell C.J. - This is one of the five decisions discussed by Judge Diane Sykes in her 2006 Hallows lecture at Marquette University Law School. It involved the admissibility of a juvenile's confession. All of the justice felt that it was involuntary and had to be excluded. A majority, joined by Justice Butler, went further and adopted a rule that all custodial interrogation of juveniles must be recorded. Justice Butler also would have held that, whenever a juvenile asks to speak to his or her parents, all questioning must stop. None of the justices would have adopted a per se rule that juveniles must be given an opportunity to consult with a parent or interested adult prior to interrogation.

I can't see how this could possibly be characterized as a case in which Justice Butler "ruled in favor of state/against inmate."

McBride also argues that it was wrong for the Butler forces to add cases involving civil commitments. I disagree, in part because, as Illusory Tenant points out, the Gableman campaign or its supporters have raised such cases on this issue and because I think they are pertinent to the larger issue of judicial philosophy which has to do with how you balance public safety with the rights claims of the accused.

But, again, I don't understand the characterization of some of these cases.

State v. Brown is the now infamous case in which the Butler camp and others have pointed out that a claim made by the Gableman campaign that Brown, a sexual predator, has been released is literally false. Brown is still in custody.

But what the Gableman's critics don't point out is that the Supreme Court ordered his release. A majority, joined by Justice Butler, held that the state had not proven, by clear and convincing evidence, that it was more likely than not that Brown would reoffend. It's mandate was as follows:

For the reasons set forth, the decision of the court of appeals is reversed, and we remand the cause to the circuit court with instructions to notify the Department of Health and Family Services that it should submit to the circuit court, pursuant to Wis. Stat. § 980.08(5), a plan for Brown's supervised release.

I can understand why someone would think that the case resulted in Brown's release. Obviously something happened after remand that is preventing it.

The Butler campaign characterizes this decision as a ruling "in favor of state/against inmate." It says that the case involved a "technical issue- remanded to give the State a chance to make its case." Actually, what the court held is that the state hadn't made its case and it remanded for the circuit court to consider a plan for supervised release.

All of this, it seems to me, makes it likely that the "75%" number is wrong. Mike Plaisted says that he did analyses of his own. Once he claimed that his own informal review of 31 cases showed Butler sides with the defendant approximately 42% of the time. That is obviously a much smaller sample than used here, but the rate would be consistent with the idea that there are substantial errors in the Butler campaign's analysis. Yesterday, he threw out a selection of statistics that don't address the question at hand. He says he counts 45 cases which overturned or upheld a conviction (not quite the question here but potentially instructive) and, based on the snippets he offers, it seems that there are up to 20 in which he believes that Justice Butler voted to uphold the conviction and 13 in which he voted to overturn. How I am supposed to conclude, as Mike says, that the campaign's numbers are "fairly accurate" is unclear to me. Maybe they are, but you can't tell that from what he has chosen to share with us.

Again, what would be more instructive is a cross court comparison of these numbers, particularly in cases that are not unanimous. I haven't seen those numbers but my impression is that Butler would vote with defendants more than Roggensack, Prosser and Wilcox (we don't have enough Ziegler cases yet)and less than Abrahamson and Bradley.

Thursday, March 20, 2008

But who's right?

We have dueling statistics regarding how often Justice Louis Butler votes in favor of criminal defendants. The Coalition for America's Families says he sides with defendants 60% of the time. Justice Butler says it's 25%.

Jessica McBride claims to have gotten a copy of the Butler's campaign's analysis and finds what appear to be a lot of flat out inaccuracies. Illusory Tenant claims, without proof, that she had a draft and argues that her claim that the Butler camp mischaracterized the case are not always correct. (Although, in the example that he offers, McBride was spot on. If the Butler campaign is contending that the Court's decision in State v. James E. Brown is not a ruling in favor of a criminal defendant, it is wrong. That the decision appears to be correct is not the point here. We're trying to get the numbers straight.)

I can't quite follow how the way in which the cases are characterized in the list that Jessica posts and perhaps it isn't the final analysis. But at least she is making an effort to get at the truth. Our friend Illusory Tenant seems to want to discredit the effort by sniping at the edges.

Now, I suppose that he will say that the number is meaningless and taken by itself, I agree. Although 60% seems very high, the number would be more meaningful if compared to the numbers for other justices. Even then, one would have to make a judgment as to whether one disagrees with Justice Butler's approach.

But since both sides are throwing around dramatically different numbers, wouldn't it be nice to know why they are so different? I guess I'd be more interested in that than playing a game of the dozens with Jessica McBride.

The mighty Barry has struck out

There isn't much that I can add to the commentary on Barack Obama's speech on Jeremiah Wright and race. It was a well-crafted speech with some astute observations but, at least for those who are not staunch left-liberals, it confirmed rather than dispelled the questions raised by his association with Wright.

Certainly he disavowed Wright's comments but that was to be expected and was never the question. The burden upon him was to explain why he attended a church at which the pastor was given to hateful race-baiting and crackpot theories of racial injury. Why did use that church as a political base? How could he have this pastor as a spiritual father?

His initial response was to deny that he had ever heard such things but, upon reflection, seems to have recognized that he had to back away from that. It seems likely that someone will place him in the congregation during one of Wright's inflammatory sermons. He must, in any event, know that it's possible for someone to do so.

So he tried to explain why a good man could say the things that Wright did, but the burden upon him was greater than that. The problem is not that Wright is angry but that he counsels anger. It is not that he was formed in a more racist America. It's not even, as Obama says, that he makes the mistake of seeing the country as static and unable to change. It's that he sees it as having not changed. For Wright, the Man's foot is still firmly on the neck of the oppressed and some type of subtantial intervention is required.

And, it turns out, so does Obama. He doesn't want to phrase it in racial terms (although he seems committed to substantial race-based policy)but his America is, despite being the only place that his story is possible, a fundamentally unjust place in which millions are shortchanged. White people who fail to understand that are, he thinks, manipulated by talk radio and conservative spin.

The upshot here seems to be that Obama doesn't share Wright's harsher views (or at least wouldn't put them in the same way) but can understand them because they are rooted in what he sees as a fundamental truth about the country.

His claim to be willing to have a conversation about race seems completely disingenuous. His equation of Geraldine Ferraro to Jeremiah Wright (and his creepy invocation of his grandmother)obscures rather than clarifies. One of the reasons that we don't talk about race in this country is that we have adotped an elaborate etiquette designed to assuage white guilt and black suspicion that makes anything approaching candor impossible. Obama has been more than willing to enforce that etiquette.

Tuesday, March 18, 2008

Oh, it's not supposed to be this way

The most active bloggers on the left believe that there is some right wing conspiracy to "swift boat" or "bork" Louis Butler in the state Supreme Court race. The dyspeptic Mike Plaisted who regularly calls people he disagrees with "wing-nuts," "slugs," "deranged," "beasts," and "those without souls", is just mortified by the tone of the race. You'd think it'd be right up his alley.

But, it turns out, these right-wing "hatemongers" have been generally critical of the Gableman ad. Sykes "flew a flag" on it and I made clear that I thought it was unfair and that, if I were part of the Gableman campaign (sorry, Mike, call me a liar when you lack a shred of evidence, but I'm not), I would have strongly counselled against it. Earlier, I said that I did not like an ad critical of Butler ran by the Coalition For America's Families. I have tried to point out when I think the public discussion of cases by both sides is inaccurate.

Others have been critical as well.

I have not, not have others, fallen all overselves to call it "racist." I understand the frisson that arises from declaring someone else's moral deficiency (and claiming, by implication, your own superiority), but I gave it up for Lent.

In any event, I am hard pressed to find one commentator on the political left who has had one thing to say about ads critical of Gableman that even the WJCIC thinks crossed the line. You've got to admire the team discipline.

In a further irony, both of the lead-off ads from the campaigns themselves (as opposed to the nefarious third parties whose ads are somehow supposed to be "phony") are troubling. Gableman's ad suggests that there is something wrong with being a defense lawyer. Butler's ad suggests that it is the role of the courts to rule against businesses who he claims "poison" people (in the event, of course, the jury decided that the plaintiff wasn't poisoned) and for widows and children as a matter of "right vs. wrong."

One could, I suppose, say that the ads are just aggressive statements of defensible positions expressed in a vigorous (even Plaistedian) way. Judge Gableman wants to adopt a less expansive view of the rights of criminal defendants. Justice Butler wants to craft the common law or read statutes more stringently against businesses that he believes are engaged - or are likely to engage - in wrongdoing.

Or, less charitably, one could say that they misstate the role of the courts as an "ally" in the fight on crime or as a "watchdog" on business.

But, so far, its the "right wing noise machine" that has looked critically at both sides.

Monday, March 17, 2008

Supreme Court ads

Some people commenting on wholly unrelated posts want to know what I think of the Mike Gableman ad commenting on Louis Butler's representation of Reuben Mitchell back when he was in the public defender's office.

I'll get to it but I also want to catch up on a few other ads.

The Greater Wisconsin Committee has put out an ad criticizing Gableman for not obtaining sufficiently weighty sentences as a prosecutor and pronouncing insufficiently weighty sentences as a judge. I haven't caught any bloggers on the left objecting to the ad which would have made them all apoplectic had it been directed at the incumbent. How can we possibly tell whether these defendants deserved more? You can't assess the propriety of an outcome without some background. The disingenuous nature of the ad is magnified by the fact that the Greater Wisconsin Committee - funded by trial lawyers, unions and casinos - has absolutely no interest in electing someone who is "tough on crime.

Then Justice Butler's campaign came out with this ad, saying that the Court's work is about "right and wrong" and trumpeting his decisions against businesses and in favor of, literally, widows and children. This strikes me as a good ad for those who favor a results oriented court. The court's business is not about "right" and "wrong" but about what the law does and does not permit. Moreover, were I in favor of aggressive use of the judicial code to police campaign ads, I could argue that the ad misleads the public about the role of the courts and suggests a bias against the interests of a class of parties. One would think that the WJCIC would ride on this one.

Finally, there is the Gableman ad. I am very disappointed that the campaign ran that ad. If the point of the ad is that criminal defense lawyers are "unsafe" as judges, it works against one of the presuppositions of our adversarial system of justice (albeit a presupposition that the general public tends to be uncomfortable with). There are criminal defense lawyers who come to have a certain type of guerrilla complex and see themselves as called to throw monkey wrenches into an unfair system. They shouldn't become judges. But that's a far cry from making an argument for a client.

I don't think it's fair to criticize a lawyer for his or her clients. It wasn't fair when the Senate Democrats did it to Miguel Estrada and it's not fair here. It was Butler's job to look for "loopholes" on Mitchell's behalf. I have nothing to do with the Gableman campaign, but I would have rather strongly counselled against this ad. If one wants to criticize Justice Butler's approach to criminal cases, there are far better ways to do it.

Now, I understand that I am also supposed to say that the ad is racist, but I am not going to do that. There is this proposed convention that, if someone is going to make crime an issue, it ought not to be done by depicting a black offender. If the issue is going to be made concrete by reference to something or someone, we should find a scary looking white guy instead.

I understand why someone would argue that this could have special appeal to someone with racist notions about blacks and crime.I also appreciate the argument that linking blacks to crime, even if the incident portrayed is accurate, can contribute to racially retrograde attitudes.

While I think all of this suggests a certain circumspection on these matters, I am not prepared to say that anytime a candidate for office depicts a black offender in the course of making an argument about public safety, he or she has committed a racist act or given comfort to racists. I am not prepared to pronounce, without more, on the state of someone else's soul.

Barack and Jeremiah

In January, I suggested that Barack Obama's pastor, Jeremiah Wright, would become an issue in the campaign. It's not that a candidate is responsible for everything that his minister or someone who has endorsed him says. Wright seemed to raise a particular problem for Obama because the candidate has identified Wright as a critical figure in his life and because Wright is a fire-breathing radical. In response, I was accused of all manner of exaggeration and unfairness.

Offline, I have been getting e-mails from an Obama supporter who is extremely worried about the political fallout from this. I think he's right. Obama has tried to run a campaign that emphasizes unity and claims to be post-ideological (whatever that means). In the course of that, he has been criticized for not being very specific and, as a relative newcomer to the national political scene, there are naturally going to be questions about who this guy really is.

In answering that question, Obama has directed our attention to ... Reverend Wright, even using a Wright phrase as the title for his campaign book.

Reverend Wright is anything but unifying and post-ideological. He views the United States as unrepentantly racist and evil. The problem is not so much that Obama sees things in precisely the same way but that he is comfortable enough with this view that he could attend Wright's church where it was part of the general milieu. It was seen, as Obama has called it, to simply be part of the "social gospel."

That becomes a problem because Wright's view of the country is not simply wrong, it is dangerous and counterproductive. I don't lack sympathy for anyone - even Rev. Wright - who is burdened by our racial past and I don't deny that this past affects us today. But failing to recognize how things have changed and giving credibility to bizarre and unfounded conspiracies that flame racial resentment is not simply a preaching of the "social gospel." It's toxic.

Obama's response to this has not been sufficient and his claim that he would have quit if he had heard these claims "repeated" (whatever that means) may backfire if it turns out that he did hear them "repeated."

It seems to me that he needs to explain how he could regard Wright as so important given the fact that this type of toxicity was not atypical for Wright. I assume that he will say, as he has, that Wright is about more than politics, but Wright is about politics as well and that's the part that is problematic.

Sunday, March 16, 2008

Music for St. Paddy's Eve

St. Patrick's Day and Irishfest weekend being close to holy days in my wife's Clan Cooley (they are fairly important to my McDonalds as well), today features more Celtic rock.

The Reddess and I are fans of Black 47 who we have seen at Irishfest, Summerfest and at the band's home venue, Connolly's in New York. They are huge lefties but lots of fun and lead singer Larry Kirwan is a pleasant enough guy to have on the next stool.

One of my favorites in the genre is the Pogue's "Dirty Old Town."

Finally, since it is also Palm Sunday, I leave you with U2 performing its signature sign-off song, "40", an adaption of Psalm 40:1-3.

Planned Parenthood should be ashamed

Fritz Hippler was a German filmmaker during the Nazi era. His most prominent sin was to make a scurrilous piece of anti-semitism, Der Erwige Jude, (The Eternal Jew). Hippler is said to have claimed that two things are necessary to promote a lie to the masses. The first was to reduce an issue to a simple black-and-white choice that “even the most feebleminded could understand.” The second was to repeat the oversimplification over and over. If these two steps were followed, people would always come to believe the Big Lie.

Orwell suggested a similar technique in his novel 1984. IngSoc (Newspeak for English Socialism) required members of the Inner Party "[t]o tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then when it becomes necessary again, to draw it back from oblivion for just so long as it is needed . . ."

We don't - "Bushhitler" notwithstanding - face the threat of totalitarianism today. But the principle of the Big Lie lives on. In January, I pointed out that claims by One Wisconsin Now and Rep. Terese Berceau that Wisconsin statutes - although rendered unenforceable by Roe v. Wade - actually provide for women who have abortions to be placed in jail.

As Charlie Sykes and Patrick McIlheran point out, Planned Parenthood insists on prominently repeating this falsehood in a series of radio ads attacking certain named Republican legislators. Jim Ott - who has to be one of the most decent people in politics - is one of them and defends himself in today's Journal Sentinel.

The claim that, in a post-Roe world, women who have abortions could be prosecuted is flat out false. It's not even debatable. While sec. 940.04 provided for such penalties, they were repealed by sec. 940.13. In a comment on Patrick's blog, OWN's Cory Liebman says that no one can tell which statute the court would enforce.

Yes, we can. There is no chance - none - that any court would find those penalties to be extant today. In fact, the Legislative Reference Bureau's description of the very law that Berceau and OWN were promoting says that current law "prohibits prosecution of and imposing or enforcing a fine or imprisonment against a woman who obtains an abortion or otherwise violates any abortion law with respect to her unborn child or fetus."

There is no principle of statutory construction that would point to enforcing criminal penalties set forth in an earlier statute that are unambiguously repealed by a later one, particularly since the legislature has since enacted other statutes dealing with abortion and the protection of fetal life that also reflect a judgment not to impose criminal penalties on women who have abortions. There are plenty that make clear that the latter repeal of those penalties must be respected.

If Roe is ever repealed and Cory Liebman wants to bet on which statute a court would apply, I will take 940.13 and whatever number he proposes as long as he shows me that he can pay.

I am not, of course, calling the people at Planned Parenthood "Nazis" although its founder, Margaret Sanger, had more than a little in common with them. I don't even want to call them liars because, as regular readers of Shark and Shepherd know, that's not what I do here.

But that's what they are. This is one of the most mendacious and deliberately misleading things that I have seen in politics since Fair Wisconsin's robocalls designed to confuse voters over the meaning of a "no" vote on the marriage amendment.

Saturday, March 15, 2008

The Body of the Wire

Sunday is my days for videos but I have not yet commented on the end of "The Wire." Those of you have seen it know how good it was. In last Sunday's finale, the rogue Jimmy McNulty was forced into resigning from the force and thus attended his own Baltimore Police Department wake - a tradition shown earlier in the series in which (actual) deceased cops are laid out on a pool table at Kavanaugh's, an Irish cop bar. Be careful - there is graphic language.

The song, we know from earlier episodes, is a tradition at these functions. It is "Body of an American" by the Pogues. Here's the full version:

Friday, March 14, 2008

Shark endorses Neubauer

Blogging has slowed to nonexistent here. The end of February and beginning of March is submission season for law reviews and I have been dealing with that as well as finishing up a new white paper on the Wisconsin Supreme Court. (Watch this space for details!)

Blogging has been so slow that I even failed to engage in self promotion and did not link to an op-ed that I published in yesterday's Wisconsin State Journal. (I am told that it'll also run in the LaCrosse Tribune and maybe one other paper or two on Sunday.)

I have a few things in the queue, but wanted to say something about the race for Court of Appeals judge in District II between Lisa Neubauer and Bill Gleisner.

First, the disclaimer. I have known Lisa Neubauer for close to 20 years. I have worked with her on cases and, early in her career, was assigned to be her senior associate "mentor" at Foley & Lardner. I haven't seen much of Lisa lately, but I have the highest regard for her integrity and abilities as a lawyer.

Lisa is a Democrat, but she is not a rabidly political person. Back in the day, when a group of us wanted to discuss politics, she would generally beg off or change the subject.

Her politics may be moderately liberal, but she is not a bomb thrower. Quite frankly, no one who is could stay at Foley & Lardner for 19 years representing business.

But here is the important part. I think that Lisa recognizes the need to separate her politics from her application of the law. She has quite mainstream views about the role of the courts. While I am sure that we would disagree on a few things, I think she is just the type of person we ought to have more of on the appellate bench. Unfortunately, few are willing to make the financial sacrifices that entails.

I do not know Bill Gleisner and I am sure that he is a fine lawyer. I met him once and he seemed to be a pleasant fellow. But he has spent a good chunk of his career writing amicus briefs for the plaintiff's bar, seeking to change the law in ways that most conservatives would oppose. Acording the the Verdict, a journal of the plaintiff's bar, Gleisner has written that the Court's decision in Ferdon v. Patient's Compensation Panel, one of the most extraordinary and, by any definition, activist decisions in the Wisconsin Supreme Court's history, is within "the finest tradltions of Constitutional analysis and statutory construction as developed by tbe Wisconsin Supremc Court from time immemorial."

Anyone who believes that has no regard for judicial restraint. None.

Lisa may not be the absolutely ideal candidate for conservative and libertarian lawyers, but she is a pretty good one. Compared to Bill Gleisner, there is just no question.

Tuesday, March 11, 2008

Shark at MAC

If you are near downtown with nothing to do this noon, come to the Milwaukee Athletic Club to see this:

Judicial Elections and Free Speech

Sponsored by the Milwaukee Lawyers Chapter


Jim Bopp, General Counsel, James Madison Center for Free Speech
James Sample, Counsel, Brennan Center for Justice
Professor Rick Esenberg, Marquette University Law School

DATE: March 11, 2008
TIME: 12:00 noon to 1:30 PM
LOCATION: Milwaukee Athletic Club
758 N Broadway
Milwaukee, WI 53202
COST: $10 ($5 students}

Don't come to see me. Bopp is a prominent US Supreme Court advocate and the Brennan Center is a well known advocacy organization that Sample serves as counsel.

Lunch is included!!!

Sunday, March 09, 2008

Music for a celtic week

Now comes the week leading up to St. Patrick's weekend. This means that we ought to start enjoying Celtic folk rock. Let's start with the Waterboys, a band fronted by a Scotsman, Mike Scott. Their signature song is "The Fisherman's Blues."

As for the Irish in America, we can't forget the Dropkick Murphys, whose recent fame includes "Shipping Up to Boston" featured at the opening of the film "The Departed. But I choose the bar time anthem, "Kiss me, I'm S***-faced"

Of course, the Murphys are also known for the Boston Red Sox theme "Tessie" - a song they wrote about a song sung by the Royal Rooters, a Sox fan group in 1903.

But to bring together things Irish and sports, I leave you with House of Pain:

Saturday, March 08, 2008

Reflecting on some judicial campaign ads, part 2.

The Coalition For America's Family also runs an ad on the Court's decision in State v. Armstrong. Armstrong was convicted of raping and murdering a young woman in Madison. The ad correctly notes that there was a great deal of evidence linking Armstrong to the crime, but that Justice Butler joined an opinion overturning his conviction. In fact, there appears to be nothing in the ad's discussion of Armstrong that is not true. (NB: There was a change in the initial ad that had to do with what it said about Armstrong himself.)

As for the Armstrong case, my initial reaction to the case was that I might well have voted to overturn as well although, after a more careful reading, I am now doubtful. Armstrong was not one of those cases where later DNA evidence proves that the defefendant could not have done it. The testing here simply established that two hairs at the crime scene could not have been Armstrong's (at trial, the state presented evidence that they may have been, although Armstrong conceded that he had been in the victim's apartment that night) and that semen stains on the victim's bathrobe could not have been Armstrong's (at trial, the state presented evidence that they could have been, althought he defense argued that they also could have been from the victim's fiance, as turned out to be the case.)

That is significant, but, as Justice Roggensack points out in a dissent joined by Justices Prosser and Wilcox, there was plenty of other evidence pointing to Armstrong's guilt and the DNA evidence did not undercut any of it. She expressed concern that the majority was applying the standards for a new trial in a way that t would threaten to "reopen convictions statewide every time a scientific improvement occurs, regardless of the lack of a probable effect on the issues underlying the jury's verdict."

So the substance of the ad seems to hold up, although, as always, there is much more to say on both sides of the question.

But I still have a problem. I just don't like the shot of the victim's body followed, not immediately but soon, with a shot of Justice Butler laughing. I make no secret of the fact that I often disagree with Justice Butler on legal issues, including some involving criminal law, but I would never suggest that he is indifferent to the plight of victims.

I know that politics is a tough game. It's a safe bet that no one will ever mistake me for a political consultant, but I think this goes a bit too far.

Of course, I also don't like the Gableman bobbing head ad either. Surprise over the idea that a Governor might appoint a political supporter strikes me as a bit like Captain Renault being shocked that there was gambling going on at Rick's. There is absolutely no evidence that Judge Gableman did anything wrong.

But, no, I am not willing to blow up the First Amendment because of it.