Friday, March 28, 2008

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.


William Tyroler said...

Rick Esenberg on 3/21/08:

I don't recall saying that the election "should be decided" by these numbers. I think I said they are of limited value and are one data point. But they are not worthless ... Now, it may well be that taking these numbers in isolation does suggest that there is a bigger difference than there really is. But there's a remedy for that as well.

One week later, Professor Esenberg has decided upon the remedy: the numbers are indeed crucial:

What do these numbers mean? ... My own view is that these differences reflect different philosophical bents. ... There are big differences and the public is entitled to know that. ...

Much changed in the past week, apparently. Perhaps it's that we're a week closer to the election. In any event, McBride claims, and I gather by his fulsome praise the professor concurs, that "Butler's list is riddled with outright falsehoods." By that, she means quite simply that her methodology should be privileged over his. The most obvious example: she wants four cases included that are left off his list (Jensen; Stevenson; Tucker; Trujillo). The Butler camp counted only cases where convictions were at issue, and none of the omitted cases satisfied that criterion. Whether that approach might yield a less accurate picture of how McBride would like to see Justice Butler portrayed ("pro criminal") is beside the point: his omissions are not "falsehoods," they simply represent a different way of organizing the data than McBride would prefer.

McBride says she limits her database to "CR or CRNM" (criminal; no-merit) because it's a "(c)leaner" way of organizing the data. It's also more than a little arbitrary (because collateral attacks, juvenile adjudications, OWIs, ordinance convictions, sexual predator commitments -- either actually or quasi-criminal -- are thereby excluded) plus you have to ignore the need to meet criticisms from the other side about Justice Butler's rulings in such cases. But OK. Now what? McBride says she organized the data on the basis of "whether his decisions favored the criminal defendant's position or not." Again: she privileges her definition over the Butler campaign's and says, first and foremost, See, he's a monumental liar. And again: methodological differences do not a lie make.

Return for a moment to the one cogent remark McBride makes, that she favors the "cleaner" method. But the cleanest, least controversial, most accurate way of arranging the data is indeed by affirmance/reversal rate of convictions. At a minimum, McBride offers no rationale as to why her approach is preferable. (No wonder: she simply looks to make Justice Butler "pro criminal" at the expense of honestly appraising the data).

I harp on this because of her constant complaint (echoed unfortunately by Professor Esenberg) that these differences in opinion represent Butler mendacity. What, though, of her own approach? Taken at face value it begs too many questions. How does she handle, say, a case in which the court finds that error occurred but was, in the particular circumstances, harmless? Or in which the court expands the idea of "plain" (i.e., unpreserved) error but denies relief on the merits. And other cases in this type of vein. These sorts of cases -- which expand defendant's rights -- are "pro criminal" in McBride's stilted conceptualization yet she would categorize them as "anti." Yes, they would add still greater heft to the absurdly inflated percentage of Justice Butler's "pro criminality," but that's beside the point. For one thing, it shows how little thought went into her exercise; for another it would add to all the Justices' "pro criminal" quotient, which would relatively benefit Justice Butler. In short, she simply does not provide a complete analysis of the cases with respect to the very thing she purports to measure: whether or not Justice Butler's decisions "favored the criminal defendant's position."

I suppose there's another way to put it, which is that to a hammer everything looks like a nail. If I tried hard enough I could probably figure out a way to make the entire court more "pro criminal" than the Warren Court.

What of McBride's weighting system? In her view, if an appeal results in partial reversal it was "pro criminal" all the way -- if at least one other Justice voted to affirm all counts. The Butler campaign took a different approach from what I gather: if 1 conviction was affirmed and 1 reversed, they were each thrown into the mix. Which means that, one, he didn't lie about his conclusions; two, his approach if nothing else is "cleaner" and less arbitrary than McBride's. Her labeling partial affirmance as entirely "pro criminal" reveals an analyst's bias, nothing more and nothing less.

What about multiple convictions that are upheld? He would assign value to each affirmance; she wouldn't. More methodological disagreement, which she apparently believes represents more lying by the Butler side. Well, no: it represents the analyst's bias. McBride wants to optimize the process of labeling Butler "pro criminal." It might be said that Butler's side has an opposite and equal bias. Maybe. But consider that in McBride's world, Justice Butler gets no credit when he partially, and only limited credit when he fully, affirms. Justice Butler's analysis at least attempts to give weight to everything.

Lies? Falsehoods? McBride says that her bias toward a "siding with the criminal" label is the more accurate approach because, by way of example, "in one case a defendant was asking for access to a pre-sentence report so that he could launch an appeal of his conviction." She doesn't cite the case she has in mind but it can only be State v. Parent, 2006 WI 132. Nothing in that decision remotely suggests that the purpose of granting such access was an appeal of the "conviction" -- not in the sense of the term that has been discussed to this point. The purpose would have been to assist the defendant in addressing sentencing issues in the context of responding to a no-merit report. It's a highly technical decision. It granted a very limited (and statutorily and constitutionally) required right to a defendant who in effect would be arguing against his own appointed attorney. And the decision was unanimous. Why would McBride include it in her list? Because it jacks up the count.

illusory tenant said...

Exactly right, Mr. Tyroler. Bravo.

Rick Esenberg said...

Mr. Tyroler

If you read through what I have said you'll see that I address all of this. Looking at convictions is one way of doing this but there are problems with what the Butler campaign did with that and how they presented it. I have said what I think those problems are are. They counted things that weren't convictions. They mischaracterized some cases, etc.

I haven't redone their analysis but I am confident that it understated the numbers. I'm unaware of anyone pointing out anything that I said that was wrong, but I welcome criticism.

The method that McBride uses is not crazy as reflected by the fact that academics use that or similar standards all the time. It does require some judgements but I looked at the cases where she differs from the characterization of the Butler campaign and corrected what I thought required correction.

The value to what she did - and that's why I think that this is more significant than the earlier numbers referred to in the post that you cite - is that they are comparative. By looking at a large number of cases and by looking across the court, we can get a look at general differences that won't be distorted by the arguments over this case and that.

Of course, it's not perfect and there are other ways that you could do it. But as long as we treat everyone the same (e.g., no justice gets "partial credit" and everyone in Parent is treated as having ruled in favor of the claim of a criminal defendant) the results are likely to tell us something.

That the results here do tell us something is, in my judgement, bolstered by the fact that the results are consistent with what we all conclude from observation and the results are the same if you do what the Butler campaign did but just apply the same analysis to the other justices.

As far as your statement that I am endorsing Jessica's editorial comments, I started this string of posts by disavowing that. I understand that you didn't like my use of the term "cooking" which you read to imply a judgment about intent (and maybe most people do use that term to do so) that I did not intend. But I think I have made that clear in subsequent posts.