Bending the Facts to Fit Your Frame

by folkbum

(Note: This is long. You can skip to the paragraph starting "To sum up" if you just want the gist.)

Justice Louis Butler may have gotten the nickname "Loophole Louie" twenty or more years ago while a vigorous public defender. However, it seems pretty clear that Wisconsin's right wing is more intent on using the moniker to suggest that as a judge, Butler seeks any possible out for every criminal defendant; hence, you've been subjected to some of the most vile and misleading advertisements ever aired in this state, and you've got rightie bloggers tripping over themselves to prove that Butler is soft on crime. (This is a stupid measure for a Supreme Court Justice anyway; they hear few criminal cases and even then, the ones they hear are, by design, cases where the State may have overstepped its bounds. I want to know how well Butler follows the law, not whether he blindly favors the State.)

And that's the set-up for a significant blunder by my arch-nemesis, Owen at Boots and Sabers. Whether he found McCoy v. Court of Appeals of Wisconsin on his own, or had it handed to him by someone à la Copiergate as Mike Plaisted suspects, Owen has badly misread the case and includes some flat-out falsehoods in his discussion of it. And, though he was corrected on it yesterday, he includes no update or other information to indicate that yes, he blew it.

McCoy is a case that Butler argued in front of the Supreme Court of the United States. (Number of cases Butler's opponent has argued in front of SCOTUS: 0.) At issue was not actually anything to do with Ellis T. McCoy, who was convicted of abduction and sexual assault and sentenced to 12 years. McCoy wanted to appeal that conviction, but, being poor, needed a public defender to do it--and that PD was Butler. Here's how the SCOTUS ruling describes the situation:

After studying the case, the attorney advised him that further appellate proceedings would be completely useless and that he had three options: He could voluntarily dismiss the appeal; he could go forward without a lawyer; or he could authorize the attorney to file a brief that would present the strongest arguments the lawyer could make in support of the appeal but would also advise the court of the lawyer's conclusion that the appeal is frivolous. Appellant selected the third option.

Appellant's counsel then prepared a brief that can fairly be characterized as schizophrenic. In his role as an advocate for appellant, counsel stated the facts, advanced four arguments for reversal, and prayed that the conviction be set aside. In his role as an officer of the court, counsel stated that further appellate proceedings on behalf of his client "would be frivolous and without any arguable merit," and prayed that he be permitted to withdraw.

So here's "Loophole Louie," explaining that there is no loophole big enough for McCoy to get through. (Note that the "schizophrenic" nature of the brief--called an Anders brief, after a previous SCOTUS ruling--is what is required by law; there was no "option four" that offered a straight appeal.)

Now you might wonder how a case in which Butler explicitly told his client he had no chance on appeal and explicitly told the court that his client had no chance on appeal would fit the right-wing frame of Butler's always working to put sexual predators back on the street. The fact is, this case doesn't fit that frame at all, and it takes some serious bending of the facts--and outright lies--for Owen to make it part of the "Loophole Louie" narrative.

Consider: Owen calls his post, "Butler Spent Taxpayer Dollars to Try to Enable More Frivolous Appeals." Owen should perhaps get some kind of award for Most Conservative Buzzwords In A Single Post Title, but set aside the marvel of engineering that had to happen to achieve that. Instead, consider how bold is the lie contained in that sentence. Yes, Butler's appeal to the SCOTUS was paid for by taxpayers--we all chip in to pay for (a shrinking and inadequate number of) public defenders who ensure that the poor can get the same vigorous defense that those of us who can afford attorneys get. But here's the lie: Butler was not seeking the ability to file frivolous appeals. Butler, in fact, wanted the opposite--he wanted off McCoy's case because McCoy had no chance of winning. But by law--well, by a rule of the Wisconsin Supreme Court, which has the force of law--he could not get off the case.

Butler could not get off the case, that is, without filing a brief explaining why he thought the appeal was frivolous. Under SCOWI rules, it is not enough for a PD to say, "this appeal is without merit," the PD must enumerate the reasons why. Butler did not do that enumeration--thinking about McCoy's 6th and 14th Amendment rights--and SCOWI sent him back to do it again. So Butler appealed--but he appealed not McCoy's case (which would have been frivolous), but the SCOWI rule.

The appellate courts and SCOWI upheld the SCOWI rule (surprise!), but ultimately SCOTUS decided it was worth looking at. This is where Owen crosses the border between fact and fiction again. Owen writes, "Butler took a case he knew to be wholly frivolous all the way to the U.S. Supreme Court." This is an outrageous lie, and, if I were Butler, I would consider libel action. Yes, Butler knew McCoy's case was frivolous, but he wasn't arguing McCoy's case in front of SCOTUS. Butler was arguing the constitutionality of requiring defense counsel to explain why a defendant's case is without merit--and that was not "wholly frivolous"! SCOTUS doesn't take frivolous cases in the first place; in the second, three of eight Justices (Justice Kennedy sat this one out for some reason not explained in the decision) dissented and agreed with Butler. I have to say, I hold a lot of sympathy for that position--in their words, "Not only does Wisconsin's Rule impinge upon the right to counsel, but--contrary to our admonition that 'there can be no equal justice where the kind of appeal a man enjoys "depends on the amount of money he has," '--it does so in manner that ensures the poor will not have 'the same rights and opportunities on appeal' as the rich."

In other words, a private attorney can drop a case because she knows it's hopeless and simply walk away. A public defender cannot merely walk away, though--he must also file the brief that enumerates why the case is hopeless. (The majority held that it may have been unfair, but it did not place an undue burden on anyone.)

It's this inability to walk away that led to an additional egregious error in Owen's original post. Owen quotes from the transcript of oral arguments, but leaves out some key context; I've bolded the parts Owen omitted:

QUESTION: Assuming you just applied Anders as written and you don't have this additional requirement of a lawyer explaining why he thinks it's frivolous, do you think the normal Anders case in which the lawyer files an Anders brief, in which he makes the--identifies the arguable arguments on behalf of his client and then says, but I think they're frivolous, do you think that takes it out of the adversarial process?

MR. BUTLER: The one thing that Anders did--I do not. I think the one thing that Anders did--

QUESTION: You think that is the same advocacy that the rich person that the Chief Justice mentioned would get? [. . .] It is the same advocacy that the rich client would get? Do you think his client is going to go in and make some arguable things, saying yes, but I think it's frivolous and I'd like to withdraw?

MR. BUTLER: No. [. . .] I can't imagine a client paying a lawyer to go in and argue the case as totally frivolous.

QUESTION: What we've got is a case where the paying client, if he's got a conscientious lawyer, would say to him, you're going to waste your money. I'm telling you that in advance. It's not worth $5,000 to file this. Of course, if you want to throw your money away, I'll file your papers for you.

MR. BUTLER: That's correct.

QUESTION: What you're saying is that the poor defendant is entitled to have the state waste the same amount of money.

MR. BUTLER: That's correct.

Owen, quoting just the last part, comments (my italics), "Justice Scalia asked if he thought it was appropriate for state-paid lawyers to file frivolous appeals." Wrong! The context makes it clear that we're not talking about the permissibility of meritless appeals. We're talking about the "additional requirement" that Butler was trying to get out of. When Butler says "That's correct," he's not stating his own opinion, but rather he's confirming Scalia's reading of the Wisconsin rule.

Owen does the same thing again, quoting an exchange between Butler and Chief Justice Rehnquist, leaving out key context and making it sound like Butler is arguing that defense counsel "should have greater latitude to argue frivolous cases" (again, my italics). But reading the very next question and answer, it's clear that Butler is arguing no such thing:

QUESTION: Yes, but you would agree, I take it, that there are some appeals, I don't know how large a class it is, that even the best lawyer in the world has virtually no chance of getting--of succeeding on; whereas, it's not nearly as easy to evaluate that in the trial situation. Everybody agrees that abandoning a client or saying I think your defense is frivolous, therefore I won't represent you in trial, it just can't be done. It isn't done. It isn't a problem.

MR. BUTLER: I understand your concern, Justice Rehnquist. That's why we are defending the Anders decision, because Anders came down with a compromise, that allowed the attorney on the one hand to try to remain that advocate while, on the other hand, recognizing the ethical duty of the lawyer not to knowingly file a frivolous appeal and pass it off as a meritorious.

Tell me, how can you possibly get from that the idea that Butler believes appeals are allowed to be as frivolous and meritless as they can be? It seems to me that Butler recognizes clearly that lawyers have the responsibility not to file frivolous appeals, and he is not in any way asking SCOTUS for permission to file them.

To sum up: Owen finds (or is given) a case Butler argued in front of the Supreme Court of the United States. Owen, believing the frame that Justice Butler is "Loophole Louie," looks for (or has pointed out to him) parts of the oral argument transcript that can be mis-read to support that frame. He then concocts a number of false statements about both the case in question and the arguments that Butler advanced in the case to claim that Butler's appeal was both frivolous and in favor of further extending the rights of defendants to be frivolous.

Now, I'm not a lawyer, and neither is Owen. But I can read the plain language of the decision and of the oral arguments. It is clear to me, as it should be to anyone, lawyer or not (I'm looking at you, Dad29), that Owen is just flat wrong here, all the way around.