Saturday, January 31, 2009

We've been through this before

As the race for state supreme court heats up, we have returned to one of last cycle's controversies. What to make of statistics that show a justice has voted in favor of the claims of a criminal defendant. The Koschnick campaign has released some numbers and Abrahamson supporters have criticized the entire undertaking, including a comment by Tom Foley that he "still cringe[s]at Professor Esenberg's defense of that rubbish."

Some of the numbers that get bandied about are rubbish. But, as I argued last spring, analysis of this type can be useful. I cited, as an example, scholarship by our former Marquette colleague Jason Czarnezki(who is decidedly not conservative). Jason wanted to see how an approaching election affecting justices and chose criminal cases because of the strong public preference for judges to be tough on crime. Do justices get "tougher" as an election looms?

But, of course, you can't tell if they are becoming tougher during an election cycle without knowing what they do during "normal" periods. So he looked at all criminal decisions over a period of time and calculated how often each member of the court voted to grant some relief to a criminal defendant. (While some of these cases involve minor issues, we are concerned not with the percentage for any one justice but how the justices compare to each other and each will have the same mix of "major" and "minor" issues.)

That seems to be what Koshnick has done here. The results, if the sample of cases is large enough does tell us something about the relative views of the justices with respect to the rights of criminal defendants. He concluded that the Chief Justice and Justice Bradley were "non-conformist" judges by which he meant, not that they are free spirits (although they may be), but that they did not conform to public preferences regarding the treatment of criminal defendants. (Koschnick would call this "pro-criminal defendant.")

I don't know if Koschnick's numbers are accurate but they are consistent with Jason's and also, I think, with what any lawyer who follows the court would know. The Chief Justice is far more likely to grant relief to a criminal defendant than, say, Justice Roggensack.

This reflects differing philosphies about the nature of the criminal justice system, the relative positions of the state and the accused, etc. It may well be - almost certainly is - the case that, as the Chief Justice says, she (and others) approach each case on its own merits. But they do so with different presuppositions about the law and society and those differences are relevant at election time. When one denies these philosophical differences, one invites efforts to demonstrate them empirically.

Of course, debate on that subject is difficult. The public probably undervalues procedural protections for criminal defendants. But electing judges presupposes the ability of the voters to make these judgements.


illusory tenant said...

he "still cringe[s] at Professor Esenberg's defense of that rubbish."

That's a compliment, by the way.


Scot1and said...

"When one denies these philosophical differences, one invites efforts to demonstrate them empirically"

How do we empirically demonstrate Koschnick's philosophy? Koschnick claims that his philosophy is that of a judicial conservative, a textualist, and all of the other rhetoric that Gableman used last year but he ignores his own record.

In Jefferson County v. Demler, which was discussed at the debate, Koschnick completely ignored the excusable neglect standard and imposed his own (No standard). He then allowed the County to obtain reconsideration of a traffic citation dismissal. What I find very troubling is at the debate he claimed that this was a tough case and then talked about the conduct of the driver. As you and I both know, the driver's conduct has nothing to do with whether the County's failure to subpoena witnesses was excusable neglect.

At least to me, it seems that Koschnick is willing to disregard the law to obtain a result. (e.g. citing a reckless driver) Is this not judicial activism?

William Tyroler said...

We've been through this before

Yes, we have. I'm not a numbers guy. Jason Czarnezki is, and a highly capable one at that, but I question his methodology, which (as I gather) was essentially to tote up the number of times individual justices voted "in favor of the defendant in criminal cases" (or, equally baldly, "voting for a defendant's claim"). It's a binary approach (leading to: agreeing with the "defendant's claim" is "bad" for the public interest; rejecting it is "good"). Too simplistic for my taste. A claim leading to relief in an individual case ultimately may redound to prosecutorial advantage in subsequent cases. Denial of relief in a specific case may nonetheless establish a principle that expands the rights of future defendants.

But let's say I'm full of it. There's a separate, to my mind unanswerable objection: the supreme court rejects out of hand the crushing majority of petitions filed by criminal defendants. I don't know the figure off-hand, but I imagine it's in the neighborhood of 90%. What that means is that any given Justice starts out with a 90% rejection-of-defendant's-claim rate before we even get to the much smaller sample size of plenary-review cases. It's highly misleading to say, then, that the Chief Justice "votes in favor of the defendant" 60% of the time, because when you factor in all cases, included rejected petitions, it's really 6%. In other words, we're looking very much at highly marginal distinctions, her 6% vs. some other Justice's, say, 4%.

Nonetheless, here we are, and Koschnick's release of "a review" by an unknown party using an unknown data set (yes, he says it's post-2000 crim law decisions, but let's at least see his list) reveals ... a "strikingly pro-criminal defendant" agreement rate (assertedly, 60%) compared to her colleagues. Curiously, 60% is exactly what Gableman claimed, citing "an outside group," was the rate "Butler has sided with criminals." Pardon me if I see this as more than mere coincidence.

Professor Esenberg sees it differently. He elevates Koschnick to Czarnecki's level of scholarship ("That seems to be what Koshnick has done here"). His bet-hedging, which allows for the possibility Koschnick's numbers aren't accurate is unconvincing because he then immediately ratifies the "study": "but they are consistent with Jason's and also, I think, with what any lawyer who follows the court would know. The Chief Justice is far more likely to grant relief to a criminal defendant than, say, Justice Roggensack." Call me old-fashioned, but I prefer proof, even when the claim confirms my own suppositions. Still, as suggested above, even if you do take Koschnick's "study" at face value, that yawning gap it supposedly revealed between the Chief and Justice Roggensack is really more like 6% vs. 1.7%: a marginal difference.

Anonymous said...

Why did a Wisconsin resident, a native of Whitefish Bay and a graduate of UW-Stevens Point, travel to Minnesota for law school?

Could it be that he couldn't get into the state's top rated law school or even Marquette?

Hamline is well-known as the worst law school in the Midwest -- the easiest to get into, yet it is becoming the conservative's pipeline to the Wisconsin Supreme Court.

Can't you folks find a conservative with a brain?

William Tyroler said...

Couple more thoughts -- and by the way, although I (think I) differ quite strenuously from Professor Esenberg on this topic, I much appreciate his creating a public forum.

I was much too hasty in characterizing Czarnecki's assumptions as, roughly, public vs. criminal-defendant interests; in fact, that's Koschnick's (a transparent effort to ape Gableman's successful approach), which I conflated. Czarnecki's study, as I read it (unfortunately, his tables aren't reproduced in the commercial database I accessed), comes to a single, very cautious conclusion: "being appointed (versus elected) in the initial term has an extremely significant impact on a justice's voting for a defendant's claim in his or her initial term, suggesting that judicial selection methods impact strategic voting on the court." Not quite what we're discussing here. (To be sure, he also suggests that some Justices engage in "strategic" voting as the election draws close, but the data suggest that most don't.)

The larger question is, what did Czarnecki measure; and contingently: would his measurement support Koschnick's breathless characterization of "her long record as the most stridently pro-criminal defendant justice on the court." I think it's abundantly obvious that Czarnecki did measure something, but I don't think it's whether any individual Justice is "pro-criminal defendant." He purports to measure what he calls "responsiveness to the electorate," which is something else. To the extent the electorate is galvanized by hyperventilating hacks, then "responsive" judicial voting becomes either result-oriented or merely "accountable to the electorate," depending on your perspective. I'll leave it at that. I hope others wil weigh in with their opinions, especially if divergent. (And, yes, I still have problems with the concept of tallying votes "in favor of defendant's claims," though I do acknowledge that in a narrow sense it might well suggest the impact of an electoral pitchfork brigade on someone's voting pattern.)

Rick Esenberg said...

As far as the criticisms of Judge Koschnick's philosophy, I know nothing about it. I've spoken to the man once. Not that anybody cares, but I haven't endorsed anyone. It sounds like Demler was a bad decision.

I both agree and disagree with Brother Tyroler. I disagree that the methodology is not useful. Believe me, legal academics do stuff like this all the time. While I acknowledge that there can be varying degrees of relief and some victories for a defendant can prove to be pyrrhic, the aggregation of cases renders that less problematic.

The reason is that, as I argued last year, the numbers for any one judge in isolation are meaningless. It's only in comparison that they make sense and, if you have enough cases over a long enough period of time, you can get a sense of a judge's overall body of work in criminal cases. There would be no reason, for example, to think that the difference between Abrahamson and Crooks is the only the result of the former giving defendants a lot of minor victories that the latter denied.

Nor do I think that it is misleading to look at only cases in which review is granted. These are the cases in which the differing views of the justices will be expressed.

I agree, however, that the numbers are only the beginning of the debate and I don't like the term "pro-criminal defendant" because it suggests an affinity for crime. But I acknowledge that campaigns can't address the public like a professor would address a seminar.

As I said, the public, in my view, underestimates the value of procedural protection for criminal defendants and one can argue that a greater willingness to recognize them is a good thing and suggests judicial independence,etc.

On the other hand, I wouldn't dismiss these differences as simply catering to the electorate's preferences. To use less controversial conservatives, the reason that Justices Sykes and Prosser differed from Chief Justice Abrahamson is that they see these matters differently.

It is also the case that the difference in numbers could mask some differences in judges' approaches to criminal matters that are more narrow than an generalized disposition more favorable to claims of defendants. A judge could be a dove on searches and seizues but a hawk on sentencing.

Now, in the case of the Chief Justice, I think we all know that she is, in the aggregate, more likely to find in favor of defendants than other justices. This is, I think, because of her notions of what should inform judicial decisionmaking, approach to pertinent constitutional provisions and views on the criminal justice system.

Whether this is a good or bad thing or whether Judge Koschnick's views on these matters differs in some material way is an appropriate topic for debate.

William Tyroler said...

in the case of the Chief Justice, I think we all know that she is, in the aggregate, more likely to find in favor of defendants than other justices

Agreed (and, stated that way, the proposition doesn't strike me as controversial). But Koschnick's assertion, "that Justice Abrahamson had voted in favor of the criminal defendant 60% of the time," is misleading. Here, the Prof and I fundamentally disagree about throwing into the mix review-rejections. I don't have time to delve further into this, but the court itself provides these figures: "Court reviews approximately 1,000 petitions per year and accepts between 100 and 120." An LRB tabulation is about the same:

Unlike the Court of Appeals and circuit courts, the Supreme Court determines which cases it will hear. The Supreme Court receives over 1,000 requests for review a year and generally agrees to hear about 100 of them.

On the face of it, then, you can fairly say that much of the court's work is consumed by reviewing -- and denying out of hand -- the many requests for discretionary review. I don't quite see how they can be excluded from an accurate assessment of a Justice's overall work. The professor disagrees:

Nor do I think that it is misleading to look at only cases in which review is granted. These are the cases in which the differing views of the justices will be expressed.

True, but in the same limited sense that explained why Willie Sutton robbed banks: because that's where the money was. Cases that have been reviewed, rather than rejected for review, are where the data may be easily mined. Yes, they show expressions of differing views. And yes, of course, they will show that the Chief tends to be more (fill in the blank) than other Justices. But this only begs the question about whether Koschnick's use of the data is misleading. I say his claim that she favors criminal defendants 60% of the time is exceptionally misleading. As I've noted (and I don't see any possible disagreement), it's more like 6%. Same for when he similarly says, "Justice Abrahamson’s record is strikingly pro-criminal defendant when compared to her colleagues on the court." It's like saying someone with 6 cents is strikingly more rich than someone with 2. And when the Koschnick campaign inveighs against the Chief "as the most stridently pro-criminal defendant justice on the court" (emphasis supplied), it is being demagogic as well as misleading.

Anonymous said...

"Can't you folks find a conservative with a brain?"

Gee, where do you think all the economist and others that brought us this bad economy went to school? Harvard etc...and other fine institutions!

Perhaps we overplay the school thing.

illusory tenant said...

A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.

— SCR 60.06(3)(b)

In touting these figures, isn't Koschnick both questioning the Chief Justice's partiality and committing to rule otherwise?

Anonymous said...

The problem here is that there are often times two different, often times opposing, standards by which these cases must be judged.

One example of this is what we do when we have "fruit of the poisonous tree", in the form of evidence obtained illegally. It used to be more standard to disallow this type of evidence in trial, and is often times the reason for an appeal by the defense after being found guilty.

Disallowing this sort of evidence on appeal could certainly put a guilty criminal back out on the street, but given that government immunity from prosecution for abuse is almost absolute these days, that certainly would lead to more and more police abuse, and would be bad for society.

It would be easy to hype that sort of case as an example of letting a criminal out on the street, even if in the long run it would encourage the police to respect rights more carefully, and take extra precautions to operate within proper bounds.

Anonymous said...

Statistical measures of outcomes do not bear any necessary relationship to judicial philosophy; especially as the precision of the measure becomes smaller.

These studies are merely examples of the old wisdom "lies, damned lies, and statistics"; quantitative "measures" of purely qualitative events.

sean s.

Anonymous said...

Your original post made the comment that “... Chief Justice and Justice Bradley were ‘non-conformist’ judges [meaning] that they did not conform to public preferences regarding the treatment of criminal defendants. (Koschnick would call this ‘pro-criminal defendant.’)”

I am only a 2L: pray tell me in which course I will learn that Courts are supposed to rule in conformity to “public preferences regarding the treatment of criminal defendants”?

sean s.

Display Name said...

Call be a skeptic. Show me. Toss me some facts. How many decisions has Koschnick written? Who has read them? What can we learn about the candidate from what he has written? How does this compare to what he claims in stump speeches?

Anonymous said...

Comparing Professor Czarnezki’s academic work to Judge Koschnick’s releasing “some numbers” is ridiculous. Professor Czarnezki published his work in a academic journal with data supported by explanation in methodology, a lengthy discussion of the implications of the research, and recommendations for further research. It was put out there to stimulate thoughtful debate of the results. The judge’s 1-page release of “some numbers,” unsubstantiated by any methodology or any real discussion of potential underlying issues, is simply a method to garner votes. Unfortunately, the Judge is attempting to reduce the Chief Justice’s decisions to simple statistics in order to influence the public into thinking that Justice Abrahamson is a bad judge. While I can’t conclude that either way, I do know that the substance of a Judge’s decision should be the determining factor on the judge’s quality; NEVER the judge’s pattern of voting over the years – reduced to a simple percentage. Anyone respectful of the judicial election process should be concerned with Judge Koschnick’s approach. Yes, “the public probably undervalues procedural protections for criminal defendants”; but all people are also misled by statistics. Combining these two things, as Judge Koschnick has, severely undermines the election process.

Anonymous said...

"Combining these two things, as Judge Koschnick has, severely undermines the election process."

... which is, of course, the goal.

sean s.

Rick Esenberg said...

Sean S.

Of course they are not supposed to and I don't think anyone has claimed otherwise. Professor Czarnezki referred to them in that way in a descriptive rather than a prescriptive manner and I don't think that his work says anything about "why" the views of certain judges conform more closely to public preference. Certainly, there is no basis to conclude that they tailor their views to satisfy the public.

As far as the difference between Koshnick's numbers and Jason's, I compare them only to point out that a statistical summary of voting patterns can be a useful tool. I am making no claims about the accuracy of Koshnick's calculations other than to note the obvious - they seem comparable to Jason's.

Should you vote based solely on these numbers? I wouldn't. As I said, they are helpful only by comparison to other justices and really only begin, rather than conclude the conversation.

As for IT's suggestion that they amount to questioning a judge's partiality, I don't think that the numbers themselves do any such thing. I can argue that someone's interpretive philosophy is more favorable to the claims of criminal defendants (or less favorable) without saying a thing about their impartiality.

illusory tenant said...

My (rhetorical) question was whether Koschnick was questioning her partiality. Of course he is. He's claiming she's partial toward criminal defendants, and he's at the very least implying a promise to rule otherwise.

Koschnick's campaign person Seamus Flaherty goes well beyond simply questioning her partiality. That's the entire purpose of this ridiculous and insulting exercise.

Anonymous said...

If Czarnezki's numbers don't say anything about why a Justice voted one way or another, if one should not rely soley on them; if you cannot vouch for the accuracy of the numbers then in what way are these numbers a "useful tool"? Useful for what purpose? They seem only deceptive and unfairly prejudicial. They are so uncertain as to their meaning that they seem more fraudulent than useful to reasoned consideration.

sean s.

Anonymous said...

Congratulations to the Koshnick campaign for raising $14,000+ during the last half of 2008. I can only imagine how the Chief Justice is shaking in her boots at the prospect of facing off against this invincible juggernaut.

And congratulations to the learned Circuit Court Judge for hiring one of the great legal minds in Wisconsin to be his campaign manager. What's the name of his legal alma mater? Ave Maria? Oy vey! This is quite the team of legal "scholars"!

William Tyroler said...
This comment has been removed by the author.
Anonymous said...

Rick, if you support Koschnick's overly-simplistic stats, then you must have supported this one:

McCain voted with Bush 90% of the time.

Should I go back through some of your older blogs to check?

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