Judgment Day in Wisconsin

Some of the hardest fought campaigns in 2008 will be to determine who sits on the highest courts in a number of states, courts where the stakes can be billions of dollars for corporations and insurance companies; millions in fees for trial lawyers; compensation for those who have been injured by negligence; or the liberty of individuals who have been convicted, rightly or wrongly, of crimes. In the past, some of those who would be state supreme court judges, as well as a number of outside groups that have taken an interest in these races, have shown a disregard for the facts in their campaign advertising. This year, we're making a special effort to track judicial campaigns.

We're calling this occasional series "Court Watch." Our first report deals with falsehoods, misleading statements and unproven innuendo about corruption, rape and murder in a Wisconsin race in which an incumbent justice, appointed by a Democratic governor, has been challenged by a lower-court judge who was appointed by a Republican. An independent watchdog group already has criticized one outside group and the challenger's campaign for making misleading claims. The ads have drawn fire from others, too, including the incumbent justice who might benefit from one of them.

We find that there are grounds for the outrage. Specifically:

A fundraising letter from challenger Mike Gableman's campaign accuses incumbent Justice Louis Butler of being the "deciding vote" in a decision that resulted "in the release of [a sexual] predator into Milwaukee County." But the predator was never released.

An ad paid for by a liberal group implies that Gableman got his lower court seat by writing checks to the then-governor's campaign. The ad provides no evidence, though, that anything unethical occurred.

Another ad, this one from a conservative organization, implies that the incumbent overturned a murder conviction despite overwhelming evidence of his guilt. But Butler based his ruling on new DNA evidence that undercut a key part of the prosecution's case. Election Day is April 1.

Analysis
We just finished reading John Grisham's latest novel, "The Appeal," which spins the tale of a Supreme Court race in Mississippi. We couldn't help but notice a few uncanny parallels between its plot and the real-life Wisconsin race as it has unfolded so far. In both cases, a sitting African-American justice is targeted for defeat by business interests. In both, ads accuse the incumbent of coddling criminals and being too tough on business. And in both, the election results could tip the liberal-conservative balance of the court.

In the book, a direct-mail letter accuses the incumbent of being responsible for setting a child molester free. In Wisconsin, a direct-mail letter accuses the incumbent of providing the "deciding vote to overturn a sexual predator decision … resulting in the release of the predator into Milwaukee County."

In neither case is the accusation true. In Grisham's story, the molester escaped from a local jail and died long before the court campaign. In Wisconsin, the predator remains in the same treatment facility where he was confined when his case went to the Supreme Court.

A Dubious Dispatch
A fundraising letter paid for, authorized and sent by Gableman's campaign last month asks recipients to help fund his race while slamming incumbent Butler as an "activist liberal" who's soft on crime. The letter, signed by former Lt. Gov. Margaret Farrow, a Republican, cites some cases where Butler supposedly went astray, including State of Wisconsin v. Richard A. Brown.

The case turned mainly on the admissibility of a psychologist's report on Brown, who had committed several acts of sexual violence over the years, and whether the state had "clear and convincing" evidence that Brown was much more likely than not to attack again if he was released from the treatment facility where he had been locked up after serving his prison sentence. The court decided the state hadn't met the "clear and convincing" standard and ordered it to prepare a supervised release plan for Brown. The 4-3 majority decision, issued March 22, 2005, was written by Chief Justice Shirley Abrahamson; Butler concurred with most of her opinion.

Ordering the state to prepare a plan and releasing Brown into the community are two different things, however. And, as it happens, Brown was not released. He remains in custody at the Sand Ridge Secure Treatment Facility in Mauston, Wis. (which is in Juneau, not Milwaukee, County), and has been there continuously since well before the case went to the Supreme Court.