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Finding a Loophole

Jul. 7, 2010
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For years, conservatives denounced the idea of criminals avoiding punishment for their heinous misdeeds by “finding a loophole” and “getting off on a technicality.”

The right wing always made it sound as if our legal system had been intentionally set up to free criminals so they could go back to raping and pillaging our communities with abandon.

In fact, those so-called “technicalities” that resulted in convictions being overturned were anything but petty. They usually involved police, prosecutors or the courts themselves breaking laws or violating our Constitution.

For conservatives, however, despite what you may hear at their tea parties, any abuse by government pales in comparison to the acts of lowlife criminals, whom they define as anyone accused of a crime.

That attitude didn’t seem to apply, however, when conservative Wisconsin Supreme Court Justice Michael Gableman was facing a complaint from the state Judicial Commission for violating judicial ethics and lying about his opponent in a campaign ad.

You may have heard what Gableman was able to do. That’s right: Gableman found a loophole and got off on a technicality.

Actually, you may not have heard. The Wisconsin Supreme Court, justifiably, took so little pride in its action, the court released the decision late at night under cover of darkness.

Even then, Gableman wasn’t really exonerated. He succeeded in the same way Americans recently learned teams can stay alive in a soccer tournament: He managed to eke out a tie.

Since not even Gableman was brazenly unethical enough to cast a vote in his own ethics case, the seven-member Supreme Court split 3-3 on whether Gableman was guilty of lying in a racially tinged commercial he ran against former Supreme Court Justice Louis Butler, the only African American to serve on the court.

Three justices ruled Gableman was a liar. The other three justices—using an excruciatingly “technical” definition of what constitutes a lie—ruled the ad wasn’t exactly a lie even though it was “distasteful.”

So, in effect, the Wisconsin Supreme Court unanimously ruled Gableman was either an outright liar or just a horrible person.

Despite that, Gableman probably will avoid any punishment. Talk about finding a loophole.

Hollow Rhetoric

The vote breakdown between the members of the court revealed just how hollow conservative political rhetoric on justice really is.

Conservative justices are the ones who hate the idea of despicable miscreants getting off on technicalities, right? That’s why their campaign commercials feature all those clanging jail doors. They want to put a stop to that sort of thing.

Well, guess what. Suddenly, conservative justices have a newfound love for legal loopholes that allow bad guys to avoid punishment.

The three conservative justices—David Prosser, Pat Roggensack and Annette Ziegler—voted as a bloc to let Gableman off on a technicality. The three more liberal justices—Chief Justice Shirley Abrahamson, Ann Walsh Bradley and N. Patrick Crooks—found Gableman guilty.

The charge was particularly interesting because it involved a Gableman commercial accusing Justice Butler of using a legal loophole to set free a child molester who then went on to molest another child.

Well, technically, the commercial didn’t exactly say that. Everyone who saw the commercial just thought it said that.

First of all, the commercial showed photographs of two black men side by side. One was a glowering mug shot of a hated child molester, Reuben Lee Mitchell. The other was Supreme Court Justice Butler. Butler was laughing.

The voice-over said: “Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

The so-called “loophole” was that Butler, when he was a public defender, won an appeals court decision that Mitchell deserved to get a new trial because of legal errors that initially prevented him from being fairly tried.

Butler and the appeals court were doing their jobs not only for the accused, but for all of us, by requiring that prosecutors and the courts follow the law.

What the commercial did not say—making the entire ad a lie—was the Supreme Court overruled the appeals court decision. Mitchell didn’t get a new trial. He was never released until he served his entire sentence.

The fact that later in life Mitchell committed another crime had nothing to do with Butler’s handling of his previous case.

Violating judicial ethics can result in a judge being removed from the bench. One would think conservative justices might be sticklers for obeying not only the letter of the law, but also the spirit of the law.

But instead the conservatives accepted Gableman’s tortured argument that even though the public thought his commercial said Butler had set free a child molester to attack another child, the words didn’t exactly say that.

This time a lowlife really did get off on a technicality.


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