Boots Not Made For Walking

If Jessica McBride trying to get her sloppy journalistic mind around the intricacies of court decisions isn’t enough for you, wait until you get a load of right-wing media darling "blogger" Owen Robinson try on some look-what-Butler did finger-pointing in a ridiculous post today. One of the oppo-researchers working for WMC/Gableman threw him a bone, pulling out some details from an argument Louis Butler made to the U.S. Supreme Court twenty years ago. The results are not pretty, proving the adage that if you see something dangerous on TV – or, in this case, on McBride’s blog – don’t try this at home.

The case involved Butler’s appeal of his refusal to submit a complete "no merit" report against one of his appellate clients when he was in the Public Defenders office. It was a challenge to the requirement in Wisconsin law that an appellate lawyer appointed by the state to review a defendant’s case for possible appeal who finds that any appeal would be frivolous has to – if the client requests it – file a "no merit" report with the Court of Appeals, stating not only what possible appellate issues were reviewed, but also arguing, in effect, against his client by telling the court why an appeal on those very issues would be frivolous. The Court – with Justices Brennan, Marshall and Blackmun dissenting – decided that Wisconsin could indeed require appointed counsel to make such arguments against their clients.

Well, the whole notion of Louis Butler standing before the Supreme Court on a case in which he has already agreed would be frivolous on its merits was too much for Robinson to pass up one week before the election. You can almost hear the gears grinding in the untrained head: frivolous...Butler....frivolous...Butler. Hey, Butler took a frivolous case to the Supreme Court! This kind of ignorance can be a dangerous thing, not that Robinson minds as long as it serves the WMC/Gableman cause. No doubt this will provide fodder for similarly insipid wing-nuts on mainstream radio to squawk about this the rest of the week.

Butler’s position in the case before the Supreme Court was not that he should proceed to file appeals in cases that were frivolous. His position was that, if an appellate lawyer reached that conclusion, he or she should not be required to produce a document that argues against the case the client thinks he still has. He also made the point that a private lawyer retained by the defendant has no such obligation – he or she can just let the case drop. It was an important argument about the role of a defense attorney and trying to prevent the situation where the attorney, basically, has to flip and argue against his client’s interests.

Of course, it goes without saying (so I’ll say it anyway) that Butler was actually capable of arguing before the U.S. Supremes – which did several times – while Gableman, were he to show up on any given day, would barely be qualified to sit in the gallery.

The oppo-researchers feeding the gullible Robinson – my, they were thorough, weren’t they? – also gave him a pull quote, where Justice Scalia asks a question that really misrepresents the Wisconsin law, implying that where a private lawyer would advise against "throwing you money away" on an appeal, the appointed lawyer would "have the state waste the same amount on money". Butler says "That’s correct." Whatever the context is of this quote (it’s get-away day here and I’ll try to listen to the recording later), the state requires the appointed attorney to "waste money" by filing a "no merit" report and coming up with all the reasons his or her client should lose. Robinson tries to make this a Butler-wasting-our-money issue. "Unfortunately it was the Wisconsin taxpayers who had to pick up the tab," he snarks. As the taxpayer does for all indigent clients, in trial court and on appeal. I suppose, Gideon notwithstanding, Robinson would have nothing of court-appointed attorneys in the first place. That’s only one of the many problems he has dealing with the real world.