Judicial Campaign Ads

I have seen a lot of advertising for the state Supreme Court race, and the only coverage I've actually noticed (other than one good article in the alternative press) has been an article in the main local daily newspaper that said nothing about the candidates' qualifications or positions, but talked about the advertising on their behalf.

I guess I will follow that trend, since it is my wont to critique the debate rather than the substance of things, for the reason that the stupidity and the distortion of the debate is an important issue in itself. Of course, the substance will be addressed here by virtue of the fact that you can seldom assess the quality of the debate without recourse to the facts under discussion, if the debate is focused enough to at least touch on matters of substance. Here it does.
The background is this. There are seven members of the court. They serve ten year terms. There is almost always an incumbent, since a justice can usually choose to retire when a like-minded governor is in office who can appoint a like-minded replacement, and bestow that person with the advantage of incumbency in the next election.

The election is nonpartisan, but there are two main political groupings that usually battle over any court position up for election: a conservative grouping that presses mainly for protecting big corporate litigants who come into court as employers who discriminate, violate union rights, and violate labor standards; as polluters; as producers of unsafe products; as cheats and tortfeasors generally; who want to shut the doors to plaintiffs and generally keep their deep pockets closed. They usually don't advertise their corporate interests, but rather press the idea that they are tough on crime, which is more appealing to the voters. On the other side are the liberals, supported by trial attorneys and unions, who tout competence, ethics and fairness, and, of course, toughness on crime. Not because they are tougher on crime, or even necessarily see this as a legitimate issue, but it works, and if you can make a good case that the other side is not tougher than you, then you undermine what is usually their only issue.

This year's candidates are Louis Butler and Mike Gableman. Butler is a left-of-center former public defender and municipal judge, who was reputedly (and actually) brilliant and taught at the national judicial college. When a right-leaning justice quit to take a position on the federal bench, he was appointed by the Democratic governor. His appointment tipped the court in a more liberal direction. His opinions have been independent and scholarly and have been criticized as activist by the right. He is the first African American to sit on the court. Gableman is a former prosecutor and rural county judge. I know less about him.

There have been several ads running locally for each candidate. (One fact checking site has links to a couple of them. There was also a fact checking report on one of the ads that I did not see because it ran in Madison, not Milwaukee.)


(1) "Meet Mike Gableman" (Greater Wisconsin Committee)

Here's the complete script: "Meet Mike Gableman. He wanted to be a judge. But he had a few problems. Burnett County needed a judge. But Gableman lived 290 miles away. An independent panel recommended two finalists – but he didn’t make the list. He even missed the application deadline. But weeks before the selection, Gableman hosted a fundraiser for Gov. Scott McCallum and gave him $1,250. Guess who McCallum picked? Gableman. Tell Mike Gableman we need higher ethical standards for our judges."

Annenberg Factcheck, the Judicial Campaign Integrity Committee, and the supported candidate all criticize the ad as unfairly impugning Gableman's ethics. Factcheck says that the ad is factually accurate and that the circumstantial evidence presented by the ad raises questions, but notes that it does not prove wrongdoing, and that the last sentence, referring to "ethical standards" seems to imply otherwise.

My view on that, I'd have to say, is pretty mixed. On the one hand, judges come in for a lot of crap that isn't fair. It would sure be good not to have their ethics unfairly impugned, because it affects all judges and ultimately the legitimacy of the judicial system. One would ideally like to know whether deadlines, geographical distance, and contrary recommendations by a selection committee are factors that are usually considered very carefully, or are often ignored. Is there any legal or ethical rule governing this? Was some convincing reason offered for the appoinment?
In fact, though, the other side has not put forward a convincing counter-narrative. Although Gableman's selection "shocked" the head of the selection committee, all McCallum has said about the reasons for the appointment has been that Gableman was the "best" candidate. Doesn't that just beg the question?

I disagree that it's not good enough for an ad to be based on unresolved questions. Is the public not entitled to learn about reasonable questions surrounding the appointment because the evidence is not conclusive? The ad paints a picture. It may not be pretty, but the facts on its palette are apparently true. They raise a good question that has not been answered.

The last line about higher ethical standards is problematic, however. I can defend it somewhat by saying that Gableman, by accepting the appointment under such clouded circumstances, helped create the appearance of impropriety that is raised in the ad. That in itself might reasonably be viewed as somewhat unethical. The ad does not say he is below any absolute level of ethics, it just says, "we need higher ethical standards." Although this clearly implies higher than the standards of his own conduct, it doesn't actually say that.

Another thing that makes the ad quite harsh is the bobblehead effect used to animate a photo or a short clip of Gableman to look like he's rhythmically nodding, but otherwise staring forward with an enamelled gaze fixed on the horizon. He looks stupid. Fat and stupid, actually. And the nodding effect in context makes him look worse than sleepy, it makes him appear to be catatonically reciting, "yes, master" to the governor (although the rhythm and the open eyes contradict a Barbara Eden effect).

My verdict is that it's a harsh ad, full of subtle implications and spin. It's not "fair" but it doesn't do much, in my view, to push down the already low standards of political advertising. You were expecting Solonic objectivity?


(2) "Ralph Armstrong" (Coalition for America's Families)

The script: "Ralph Armstrong was a convicted rapist out on parole when he raped, beat and strangled a 19-year-old co-ed to death. There was eyewitness testimony, fingerprints at the crime scene and blood under Armstrong’s fingernails. But Louis Butler wrote the decision to overturn this rapist’s conviction. On cases taken up by the Supreme Court, Butler sides with criminals nearly 60 percent of the time. Tell Louis Butler victims, not criminals, deserve justice."
I find this ad just bitingly stupid. It's not even grammatical. There was testimony, fingerprints and blood? Was they? I particularly am stunned by the last line that says to let Butler know that criminals don't deserve justice. Say what? If you think that it would be justice for the guilty to pay a price by going to jail, then this is a real mind-bender because meting out a just sentence would give criminals something they don't deserve, which is to get what they deserve. So either the makers of the ad have some other idea of what justice is, or they just aren't being too careful to make sense. I mean, they're literally saying that you shouldn't vote for Butler to be a justice, in a land where we pledge allegience to "justice for all" because he actually punishes criminals justly, and the makers of the ad want you to support unjust punishment.

The ad is, if not confusing, at least extremely imprecise and elliptical in fitting together its facts. Armstrong is a "convicted rapist" and in the end the Supreme Court oveturns "this rapist's conviction." So then he's not actually a convicted rapist anymore, right? Except that while on parole, he supposedly committed another rape, so now we have two rape charges, and we don't know from the ad whether I guess it was the second rape that led to a conviction, and that one was overturned. In which case, he would get back the presumption of innocence and you couldn't fairly say he raped again. Except maybe he was reconvicted after the first conviction for the second rape was overturned.

I heard this ad, and my first response was, too much missing information. You have no idea if the Supreme Court was right or wrong. You got all this evidence (fingerprints! eyewitnesses!), why can't you get the conviction to hold up? What happened? (Wait, those did point to Anderson, right? Alas, more ellipses.) Justices don't overturn convictions because they like criminals. There has to be a legal reason, usually because the Constitution was violated.

So okay, do you want a candidate who will pledge never to let this scenario occur? One who will say, bring in some blood and some fingerprints and we just won't worry about anything else? That's pretty extreme. Arguing by extremes, this would mean, plant the evidence, hide it from the defense, torture the guy in custody, try him in absentia in the wrong county or appoint a trained money to serve as counsel, pick no jury, who cares?

If Butler had been the lone dissenter, that would have been noteworthy. But he was chosen to write the opinion for the majority, which means, whatever else you say about it, his position enjoys the support of at least three other justices.

Likewise, if the conviction had been overturned for insufficiency of evidence, or on some really cockamamie loophole, that would be one thing. But it turns out that Butler's decision, while both sides can be argued, is probably right.

Anderson never denied knowing the victim or having been to the scene, so his print proved little if anything, the flaky "eyewitness" identified Anderson after hypnosis and a mockery of a lineup, then later flip-flopped. The blood was never identifed, but could have been from Anderson's own injury from a fall. So there really isn't a mountain of evidence. On the other hand, one must keep in mind that the accused also has the right to present evidence. In this case, the jury had been told that the semen and hairs on the victim could have been Anderson's. But DNA later ruled them both out. It was the newest DNA evidence that reversed the conviction.

That does not set Anderson free. It only gets him a new trial, because the new evidence is pretty strong exoneration and places the old verdict in doubt. I looked it up and it looks like the state is retrying, but the trial has not occurred, and proceedings were stayed six months ago to allow an interlocutory appeal.

Finally, there's that 60% figure. The ad shows Butler smiling and laughing at a conference of some kind while the words float over him. Factcheck can't figure out where it comes from. Only about 30% of cases before the court are criminal cases, so for him to even find 60% of cases with a criminal to support is an achievement in itself. On just the criminal cases, he says that in only about 3% of cases does he not uphold the appellant's conviction. That's not really the same question, because a lot of cases are up on sentencing issues, or whether a case should remain dismissed on evidentiary rulings, or all sorts of other things where one could "side with" the accused, and he'it would not set a convicted man free. The ad is really information-impoverished and potentially very misleading. The juxtapositon with Butler smiling is a cheap and prejudicial tactic. But campaign ads tend to be cheaply prejudicial and fact-selective.

But I think the substance of this ad makes it unfair even on low standards. Unlike the one reviewed above, this one omits some very substantial facts that any reasonable person would consider essential to evaluating the ad's claims. The fact that there's DNA tending to show Anderson innocent, and that Butler's vote was to let a jury hear that evidence, not simply let him go, is a really big thing that most viewers would feel it was dishonest to leave out. In the case of the other ad, the fact that McCollum denies any illicit motive is not in itself much of an omission without him at least being able to give some more specific reason why he picked a political contributor over the candidates recommended to him.

I do not have complete titles or scripts for the rest of the ads.


(3) Here's a partial script for a Gableman ad from Club for Growth Wisconsin: "Criminals threaten our communities. Oddly enough, so do some judges who return them to the street. But not Judge Michael Gableman. He's a former prosecutor who has gone toe to toe with the arsonists, sexual predators, domestic abusers and white-collar criminals who belong in jail. That's why 70 percent of Wisconsin's sheriffs and countless police chiefs consider Gableman their ally in the war on crime..."

WISC-TV fact-checked this. It found Gableman's crimefighting record was exaggerated. "The arsonists" for example, apparently were the targets of the only arson case Gableman ever prosecuted, which ended with an acquittal, not a conviction. He handled 19 felony child abuse cases: 13 pled to misdemeanors, 2 acquittals, 1 sent to jail after trial (the last three may have been pled to lesser felonies or given probation after trial: the report does not say). In felony sexual assault of children, 31 cases yielded 15 misdemeanor pleas and 11 convictions (not including the pleas, apparently, which would also be convictions). WISC had difficulty identifying any criminals with white collars.

It also had a problem with the overemphasis on crimefighting, which it noted mischaracterizes the mostly-civil caseload of the court.

For me, I have a problem with the whole underlying assumption here: that a good judge is an "ally" in the war on crime, and does not "return criminals to the street." I would say that a good judge applies the law and does not seek a particular result or favor a particular side. That means that criminals will sometimes be returned to the street because a trial judge: (a) allows a jury virdict of not guilty to stand; (b) dismisses a case where the evidence is too thin to present to a jury; (c) sometimes issues a not guilty verdict at a bench trial, when the evidence is insufficient; (d) will on rare occasions overturn a jury verdict that could not have been reached rationally. Appellate judges correct trial judge errors which may result in releases.

The idea that judges, by fulfilling their oath and their ethical obligations to follow the law "threaten communities" is offensive.


(4) "Mark Jensen" (The title is an educated guess and I do not have a script, but it ends identically to the Anderson ad, and the body of the ad says, paraphrasing, that before she was killed, Judy Jensen wrote a letter to police with a road map to her killer, husband Mark Jensen. It quotes a part of the letter in which she says, if anything were to happen to her, Mark would be her first suspect. It then cites the Wisconsin Law Journal as saying that Butler would not have allowed the jury to hear the letter.)

The cited article is available only by subscription, but Butler's partial concurrence in the Jensen decision is public record. It's a pretty fair account of the facts. Of course, it does not give the other side:

The entire court agreed that the letter was hearsay, and was not clearly admissible. Standing against it were recent precedents regarding the clause in the Constitution that allows accused persons to confront the witnesses against him. That clause arose because of a practice where witnesses' statements would be offered to the jury indirectly as a way of avoiding cross examination. Julie's letter could properly lead the police to suspect Mark and build a case against him, but the law would possibly prevent its full contents from being exposed to the jury because it was written for the purpose of incriminating him, and he would not be able to test the truth of the letter by cross examination. The court decided that the issue should be sent back to the lower court to decide whether an exception applied that would allow the letter in.

Butler dissented in part regarding the letter because he thought the rules the lower court would have to apply should be more strictly construed against the admission of the letter, making its admission either impossible or very unlikely. The exception the court was told to consider was whether Mark had caused Judy's inability to testify (essentially, whether evidence of his guilt was convincing enough to take away his right to cross examine the letter). Butler pointed out that under precedent, a judge would normally have to find that the accused not only procured the absense of the witness, but did so with the goal of preventing the witness from testifying.

Ultimately, it's a fairly narrow and technical legal issue. It was argued in Butler's opinion on the basis of existing law and not on any sympathy for criminals.

So this one is reasonably fair as such ads go, although I think someone should educate the voters as to what the court does and what justices are supposed to do, because this whole result-oriented get-the-criminals message undermines the whole system.


(5) Just as Jensen was a sequel to Anderson, the "Meet Gableman" ad has had a three-episode run so far. Regarding the second anti-Gableman spot, again I have no title or script, so I'll paraphrase: Remember Mike Gableman, the guy who gave all that money to the governor and got to be a judge. Well, he has more problems. His court is one of the slowest in the state, which means criminals remain out on the streets longer while waiting for trial. His court ranks near the bottom. And another problem: his decisions are reversed almost a third of the time..."

Like many of the ads here, I have a problem with the metrics this one uses. Like the last in this series, the ad carries an implication that is worth voters considering, not necessarily proven by the facts cited, and hence unfair but not necessarily below the low standard that these kinds of ads typically attain.

My problems with the metrics: (1) Why is the court slow? Is this something that typically would be the judge's fault? Are there other reasons time to trial varies? (2) Is it fair to conclude criminals are out longer to any consequence? This seems like an awful leap in logic. (3) Ranks near the bottom in what? (4) A judge's rate of reversal may be very telling, but it certainly would help to have some context to know how high that is, what it includes, and whether the reversals came from dumb calls from the bench, sloppiness, excessive activism, or just difficult cases and shifting standards.

Those are my reviews for now.



UPDATE:

I originally did not review the third private anti-Gableman ad, so I will now. It essentially states that Gableman poses as a crimefighter, but points out some of the same weak-on-crime stats as WISC pointed out in response to the pro-Gableman tough-on-crime ad. It says that as a prosecutor, he usually pled lots of bad felony cases to misdemeanors, and (do I remember this?) that he gave out lighter sentences than possible as a judge. The facts are good. I do think there is the typical problem of the metric. Is this necessarily bad? Lots and lots of cases get pled down. It's not just Gableman. The practice is not necessarily easy to justify in theory. If you really felt that the outcome on a plea was fair, how could you ethically have charged more? But it's the norm, and it's somewhat unfair to implicitly rely on a contrary assumption.

The candidates themselves have finally put in some ads of their own.

Butler's is a positive ad pointing out some of his decisions that are likely to be popular: going against criminals most of the time, and allowing big corportations to be held to account. It points out the huge number of judges that endorse him, and the huge numbers of rank and file law enforcement that have endorsed him through their unions. I am critical. I do not think it's a good thing to boast of decisions based on who won or lost. This panders to the public's desire to elect judges that will find for the most popular litigants rather than those with the best case, or who end up winning because the legal principles are decided fairly and correctly. But such is the norm, and I cannot fault Butler more than any other candidate. He at least focused on his own record, and at least mentions judicial endorsements and ideals of fairness.

Gableman's first ad was a step worse than the ones promoting him by private parties. Now we know why he did not denounce those ads. It would have been absolutely hypocritical. His is another example of picking a case where Butler sided with a criminal. (Paraphrasing, Butler found a loophole, and the criminal went on to molest again.) Except that it adds these elements: (1) the case is not one where he was a judge, it is one where he was a public defender whose job was to zealously argue for his client; (2) unlike what the ad suggests, the defense was unsuccessful -- the defendant was convicted in spite of an initially successful legal argument, and recidivated only after he had served time and been released; (3) the ad shows side-by-side pictures of Bulter and his black client, after showing a series of photos of mostly-white offenders Gableman opposed in court, apparently emphasizing the race of both Butler and his client. The ad could be described delicately and generously as injudicious.

Gableman's next ad (at least I think it is his) is striking in that it includes, in contrast to the fact that Gableman was a prosecutor, an accusation that Butler worked as a criminal defense attorney, as if this in itself should be a negative. The previous ad had implicitly suggested that there was something ignoble about providing defense for accused criminals, a necessary and praiseworthy aspect of our system of justice. The final ad makes it almost explicit that criminal defense work is something shameful. While not theoretically all that much different from what most of these ads do or imply, this does seem to me to cross a line, and lower an already low standard. Which is quite an achievement, and speaks very poorly for Gableman.