Wisconsin Judgment Day, the Sequel

In this second of our "Court Watch" series, we return to what’s become a racially charged campaign in Wisconsin to replace Louis Butler, the only black justice on the state Supreme Court, with a white, business-backed lower court judge, Mike Gableman. We look at two ads that attack Butler and find both to be misleading.

• An ad sponsored by Gableman’s campaign features images of Butler’s face next to that of a black man convicted of rape, and it’s being compared to the Willie Horton ad from the 1988 presidential campaign. This ad falsely implies that Butler was responsible for freeing the rapist and allowing him to commit another sexual assault. Actually, Butler failed to win the man’s release (while representing him as a public defender). The rapist served his sentence and didn’t commit his next crime until he had been paroled.
• A second ad, sponsored by a business trade group, says Butler "almost jeopardized" a murder prosecution. But in fact, Butler was the sole dissenter in a 6-1 verdict. The ad also says Butler focused on "needless technicalities," when the case involves a question of constitutional rights so important that the U.S. Supreme Court will weigh in on the subject this spring.

We also lay out the facts behind a radio ad by a liberal group attacking Gableman. We leave it to our readers to judge whether or not those facts add up to a political "scandal" as the ad claims.

Some of the ad’s statements are true. But the conclusion a viewer would naturally draw from the construction of the ad – that Mitchell was freed as a result of Butler’s legal finagling (or maybe a decision he made since he became a judge), and used that freedom to commit more crimes – is not. 

Butler was a public defender for part of his career. His job as a defense lawyer was to protect the rights of the accused. His job now as a judge is different. To say he "worked to put criminals on the street" while showing him in a judge’s robes hoodwinks the viewer on two counts.

In 1987, Butler was assigned to represent Mitchell in an appeal of his conviction for raping the girl.

Here’s what happened: In most states, including Wisconsin, evidence of a complainant’s prior sexual conduct is generally not admissible at trial. The theory is that sexual assault victims shouldn’t be subjected to embarrassing and detailed examination of their prior sexual conduct unless it is relevant to a particular set of circumstances.

Sometimes, though, the rape shield law can be used to the defendant’s advantage, and that’s what happened here. At the trial, Mitchell’s lawyer didn’t want members of the jury to hear that the victim was a virgin, because he was afraid it would prejudice them against his client. The judge allowed it anyway. Butler then raised the same issue when he was assigned to the appeal, and the three-member appellate panel agreed with him: Not only should the jury not have heard that information, the panel said, but there was a good chance it might have affected the outcome. The judges reversed the verdict and ordered a new trial.

So Butler didn’t "find a loophole" as this ad claims. He convinced the appeals court that the trial judge had allowed the jury to hear prejudicial information, which is just what appeals lawyers are supposed to do.

Furthermore, Mitchell didn’t get his new trial, and he wasn’t released. The state took the case to the next level, the Wisconsin Supreme Court, which reversed the appellate court. It was true, said the high court, that the trial judge shouldn’t have allowed the jury to hear about the victim’s virginity, but, said Justice Shirley Abrahamson, writing for the majority, it didn’t make any difference. "[W]e can conclude that there is no reasonable possibility that the error contributed to the conviction," wrote Abrahamson.

Butler, then, had nothing to do with Mitchell’s eventual release. Mitchell stayed in prison until he was paroled in 1992. In 1995, he was convicted for twice raping a 14-year-old. He was sentenced to 40 years behind bars, where he remains today.

The misleading message of this ad would be bad enough on its own, but its dominant visual image has drawn condemnation from many quarters. In that image, which remains on the screen longer than any other in this ad, a black-and-white photo of Butler is paired with Mitchell’s police mug shot. Mitchell is black. Butler is the only black justice on Wisconsin’s Supreme Court. The picture, at the very least, serves to remind viewers of Butler’s race.

The independent Judicial Campaign Integrity Committee, which is monitoring ads in the race, called the spot "highly offensive and deliberately misleading," saying its race-baiting was reminiscent of the infamous Willlie Horton ad that attacked 1988 Democratic presidential nominee Michael Dukakis over prison furloughs granted when he was governor. The panel called for Gableman to take the ad down, as have some Wisconsin editorial boards. But Gableman’s campaign hasn’t done so, and his campaign maintains the ad presents a fair comparison between the candidates. 

 

Wisconsin Manufacturers and Commerce, a large business lobbying organization with a membership much like that of any Chamber of Commerce-type group, wants to see Butler unseated because, it says, he’s an "activist" judge. It came after Butler this week with an ad that centers not on the civil liability issues that directly affect its members, but on a murder case that ended just last month. 

 

The ad tells viewers that Butler’s focus on "needless technicalities" in the case nearly allowed a murderer to go free. But what the ad calls "a technicality" involves an unsettled area of law tied to a fundamental constitutional right. And it’s hard to argue that he "almost jeopardized the prosecution of a murderer" when the court’s vote was 6-1, with Butler the only justice dissenting.

The fact that the letter was addressed to police made it, in legal terms, "testimonial evidence," or evidence similar to testimony given by a witness in court. And the confrontation clauses of the U.S. and Wisconsin constitutions guarantee the right of an accused to confront the witnesses against him or her. Things get complicated when, as in this case, the witness is unavailable – dead, for example. And not only dead, but possibly dead by the defendant’s own hand. In fact, the alleged cause of the unavailability of this witness was the very crime for which Mark Jensen was being tried.

Whether such evidence can be admitted and presented to a jury is not an open-and-shut legal question. The "forfeiture by wrongdoing" doctrine – whereby a defendant is considered to have forfeited his right to confront an unfriendly witness if his own wrongdoing caused the witness to be unable to appear – is by no means settled law. In the Jensen case, the trial judge declared the letter inadmissible on the basis of a 2004 decision by the U.S. Supreme Court. 

The prosecutor appealed to the state Supreme Court. And six of the justices ruled his way – but they made clear they were forging a new legal path as they did so: 

Jensen, after a seven-week trial that was followed by the national media (which dubbed it the "letter from the grave" case), was convicted and sentenced to life without parole. But he could get a chance for a new trial. The U.S. Supreme Court, still grappling with the issue of forfeiture by wrongdoing, will hear a case next month in which the accused, charged with murdering his ex-girlfriend, claims that the use of evidence of a police conversation with the victim before her death violates his Sixth Amendment confrontation clause right. The court’s ruling in Giles v. California is expected by the end of June.

Perhaps ironically, the prosecutor of the Jensen case, Robert Jambois, is a Butler supporter. Wisconsin Manufacturers and Commerce "is being completely hypocritical here," he said, "going after Justice Butler as being too liberal, when he did in this case what they say they want all justices to do, which is follow the Constitution."

"Shadowy Group" Reemerges!

Remember the "shadowy groups" condemned by the Gableman ad earlier in this article? This is most likely a reference to the Greater Wisconsin Committee, which is out with a new radio ad once again questioning Gableman’s ethics. (We’ve already reviewed one of its earlier TV offerings.)

First, we should say that this group is no more shadowy than the outside groups, like Coalition for America’s Families, that have supported Gableman. They don’t disclose their donors, but they’re not required to. For that matter, Wisconsin Manufacturers and Commerce doesn’t either. The only real difference we can see is that GWC doesn’t maintain a Web site. But finding the group isn’t difficult. Wispolitics.com, a popular political Web site in the land of the cheeseheads, has a page on it and carries its press releases.