Butler's Record Shows No Favor for Criminal Defendants

All the bloggers on the right-wing that sat on their hands for three or four days until I smoked them out about the racist Gableman ad were happy to jump on Jessica McBride’s disjointed, sloppy and ultimately wrong post regarding Justice Louis Butler’s record on criminal cases almost from the moment it was posted on Wednesday. I don’t know if they looked at it before they breathlessly started pointing to it, hoping to twist attention away from the embarrassing and almost-universally condemned Gableman ad. But, upon further and lengthy review, McBride’s effort to throw stuff against the wall and cast undue aspersions on the Butler campaign’s contentions fails miserably.

In creating her new page, titled "Election Watch", McBride emerges from a long period of relative inactivity on her regular blog. We thus have been denied the reliable comic relief of reading her "insights" on matters big and small. One recent post combined the economy and zen of a single sentence with the insight and petulance of an enraged fifth-grader: "Just change your name to Milwaukee Obama Sentinel and be done with it." Wow. To paraphrase Springsteen, sometimes you just need to stand back and let it all be.

But this week, McBride puts on her amateur lawyer hat and delves into the world of legal opinion and reasoning. This proves to be a fairly deep pool for the non-swimmer. She ends up doing a hit-and-run – assuming the worst about minor errors in the information provided on specific cases by the Butler campaign (esteemed counsel IT says she was working off a draft) accusing the campaign of "ginning up phony stats on crime", misreading and exaggerating the results in some cases, and pretending to win her game of legal gotcha when she has accomplished nothing of the sort.

In the end, she has no answer to the campaign’s rough estimate that Justice Butler had "upheld criminal convictions 75 percent of the time" (not that "he voted to deny appeals," as she falsely quotes an AP story). All she does is criticize a few of the decisions that have been grist for the wing-nut mill throughout the campaign and imply that the campaign’s numbers are way off somehow. But she never comes up with her own numbers. She skims the surface and implies that the campaign is somehow hiding in the broad daylight of the public record. The reason she doesn’t write any conclusions is because she doesn’t have any – none that would support her Butler-is-wrong premise, anyway.

A couple of months ago, I looked at the past several years of Supreme Court decisions and discovered that Justice Butler did find for the state in criminal appeals a majority of the time. Now, after having reviewed all the cases listed by McBride over the totality of his time in the bench, it seems the campaign’s estimate is fairly accurate.

The list of cases in McBride’s post involve a variety of issues, not all of which have to do with criminal convictions themselves. For instance, 12 of the cases have to do with sentencing-only issues. Butler held for the defendant in 5 of these cases, such as when the Court ruled 6-1 that false information relied on by the judge is grounds for a new sentencing hearing (I’d like to hear the argument against that one).

I count about 45 cases that strictly have to do with the validity of the conviction itself.

• 5 cases involve guilty pleas – Butler and a majority ruled in 3 of the cases that the trial judge screwed up by not making sure the defendant knew what he or she was doing when pleading guilty. None of these sorts of decisions result in the defendant’s release – they just end up right back in the trial court where they started.
• At least 4 of the reversed convictions are unanimous, including 3 of the cases McBride complains about – Long, where even the state had to admit that the search was illegal; (James E) Brown, where the entire Court agreed that the trial court erred by denying an evidentiary hearing after really messing up the plea hearing; and Raye, where a juror said he did not agree with the guilty verdict at the time the jury presented it to the judge, thus violating the defendant’s sancrosanct right to a unanimous verdict.
• 2 of the overturned convictions with Butler in the majority were on 5-2 votes, meaning the same result would have been reached with or without Butler.
• Only 4 of the cases overturning convictions had Butler in a 4-3 majority: the much-discussed Knapp and Dubose; the somewhat-discussed Armstrong (featuring new DNA evidence) and Stuart, where the defendant’s brother was not produced to testify his trial and his testimony from the preliminary hearing was allowed to be read to the jury.
• 14 of the upheld convictions were unanimous.
• Butler was in two 6-1 majorities that upheld convictions.
• He was in four 5-2 majorities for conviction.
• Butler dissented in only 5 cases in which the state prevailed.

What is clear from this review is that Justice Butler is right in the mainstream of the court in criminal cases. Although he may have a difference of opinion with some members of the court -- particularly regarding the suggestiveness of eyewitness identification -- his opinions are well-grounded legally and, of course, expertly written. A fair review of all these cases cannot possibly lead to a determination that he is bending over backwards to find for the defendant -- far from it. Even where he found constitutional violations, he often let the conviction stand because the error was harmless (Hale, Harris, etc.).

In defending his campaign's racist ad this week, Gableman flack Darrin Schmitz talked about "Louis Butler's record of tying the hands of law enforcement and siding with criminals". None of this is evident from a fair reading of the cases reviewed. His political opponents can and will squawk all they want about the four 4-3 decisions (and it would be nice if Gableman would explain how he would have ruled differently). But it is obvious he had many other opportunites to "side with criminals" and he didn't. Justice Louis Butler plays it right down the middle.