Thursday, March 20, 2008

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.


Anonymous said...

As a future attorney (I'm a 2L), it is shocking to me the amount of disdain the legal profession has for the non-legally trained citizen attempting to undertake legal analysis in the context of speaking of matters of public concern. Isn't participation of non-lawyers in the discussion something to be encouraged? I'm not much concerned with the fact that you attack the results of her analysis, which seems to me fair game, but to insinuate that because she did not go to law school McBride is somehow incapable of adding anything meaningful to the discussion is somewhat conceited.

Mike Plaisted said...


You raise a good point about respecting non-lawyers who make good faith efforts to get their head around what can be complicated issues. I think it's important that they make the effort and I should try harder to make the cases and the process more understandable for those who don't deal with it every day. I mean, these issues are not that difficult -- the only reason I can get to it more quickly is because I've been doing criminal law for 22 years. That doesn't mean a non-lawyer can't get a grip on it, if they take the time and make an honest effort.

But McBride doesn't come to this in good faith and I also think there is a higher standard applied if you pretend to be conducting "journalism", which I think she is. The post she put up (and the new one today) is more journalistic malpractice than legal. She just doesn't care whether she gets it right or not. She is more interested in whether the database the Butler campaign staff is using properly catagorized cases - she considers every accident deliberate - than the substance of the important issues involved. For instance, three of the cases she blames Butler for in her first post were unanimous. Yet it is "Butler that did this, Butler that did that". She deliberately misleads on a regular basis.

But this is what McBride has done for years. She wants to be taken seriously, but she is one of the most laughably unserious people writing right-wing blogs. This doesn't have anything to do with her not having a law degree. It has much more to do with her not having a clue of any kind.

Anonymous said...

As an outsider who spends most of his time undermining the teaching profession, there is one aspect of the Gableman ad I find confusing. The anti-Butler ad seems to imply that he was the deciding judge in the "Willie Horton/ Mitchell" ad. But, unless I'm misreading the comments and posts, he was actually the attorney for Mr. Mitchell. If this is the case, then the ad seems unfair because anyone would admit--were they the accused--that they would want their lawyer to fight like hell to get them off. I would be completely dishonest if I were to say I wouldn't want my lawyer to do whatever is necessary on my behalf. Assuming I have read things correctly, I'll find it hard to vote for Gableman.

All this despite the fact that don't see the ad as racist--this is a claim just thrown around too often these days. I'm also not troubled by how he was appointed to the bench in the first place.

Mike Plaisted said...


There is no question that the Mitchell case stems from Butler's representaion of him when he was in the Public Defender's office. Even the ad says the case is from 1985 -- he didn't become a judge until 1992 or so. It is unfortunate that even an obviously intellegent, astute observer such as yourself has been misled or, at least, confused by the Gableman presentation. Gableman is basically trying to beat Butler over the head with one of his worst clients, an easy target for any experienced defense attorney who does not shy from the tough cases.

It is also clear (another misleading part of the ad) that Butler did not "get him off". He won a new trial in the Court of Appeals, but that was voerturned by the Supreme Court. He searved his whole sentence and offended again - which had nothing to do with Louis Butler.

Thanks for your thoughts today.

illusory tenant said...

2L, who's doing a better and more accurate job presenting to the public insight into the workings of the law and the courts, Counsellor Plaisted or Jessica McBride?

Rhetorical question.

Anonymous said...


2L here. It's good that your question was rhetorical since I haven't read McBride, nor do I intend to. I simply don't see the benefit in categorizing these Supreme Court decisions and slapping them "pro-defendant" or "pro-state." If you really want to critique a decision, the analysis is what counts, and alleging flawed analysis seems to me to be far more damning than yelling "He loves criminal!!" This cuts both ways; both camps seem silly to me for attempting to do this.

My point was that I'm very much concerned over the treatment of non-legally trained observers by the legal profession. I understand that there's some territorialism here, but there's been an increasing chorus of commentators (and at least one judge who happens to be knee-deep in an electoral contest right now)that have basically alleged that anyone who wants to comment on any particular decision needs to be there, reading the briefs, listening to oral argument, etc. I simply don't buy that; and, it seems, neither does Mr. Plaisted. Surely you don't disagree?

Rhetorical question, hopefully.

illusory tenant said...

This affirms your hope, 2L. Very well said, and bloggers such as Plaisted and myself have made considerable efforts to explain many of the issues under consideration to non-lawyers.

To those ends, neither Plaisted nor myself have ever shown condescension toward non-lawyers, but I think it's fair to say that we often don't suffer fools gladly who deliberately distort the caselaw, the role of the courts, and the nature of the adversarial system.

The distinction, I think, is that Gableman made this percentage business an issue by misrepresenting a number of Butler's opinions, and Butler was put in the unfortunate position of defending himself against the various figures that have been thrown around.

I say he was put in that position because his campaign is reportedly getting outspent 20:1 by third-party pro-Gableman groups, and the likes of bully pulpit buffoons like Patrick McIlheran are lending themselves to further disseminating the false messages of Gableman supporters.

That is the sort of thing that irks me and Plaisted, and rightly so, whether you're a lawyer or not.

Read Plaisted's earlier post about the Butler/Gableman encounter that took place at the MKE bar offices. Butler tried to engage Gableman on jurisprudence and substance, but Gableman was having none of it.

Why is that? I have my own suspicions.