Club for Growth is even smaller than I thought

by folkbum (not an attorney--anyone who is who sees errors should let me know right away)

This started as more updates to my previous post, but it's a little long for that. I'll start with a recap:

• Bob Dohnal files a complaint (.pdf) that Justice Louis Butler is illegally using corporate resources (the Milwaukee firm of Friebert, Finerty, & St. John (FFSJ)) for his campaign.
  
• The Wisconsin Club for Growth follows that up with an "email update" all about the complaint, and including links to "evidence."
  
• One piece of evidence is a list (.pdf) of 35 cases before the Wisconsin Supreme Court involving attorneys from FFSJ.
  
• The list includes two cases--petitions, really, in the same case--brought by a John D. Finerty. CFG claims this is the same John D. Finerty who for a time served as Butler's campaign treasurer; it turns out to have been John D. Finerty, Jr., a completely different attorney at a completely different firm. (Even though I contacted WICFG, they still have those cases on their list.)

From there, I kept looking at the list from CFG. (I searched Supreme Court opinions and WSCCA.) It has a number of other problems:

• It lists single cases multiple times. For example, 2004AP003179 is listed six times, all under the name of attorney Matthew O'Neill. Several other cases are listed under multiple attorneys' names, if more than one attorney was involved--like 2005AP002224, which is listed under three different attorneys' names.
  
• The list includes cases Butler recused himself from. According to an email from a senior advisor with the campaign, six cases on the list--including some listed more than once under different attorneys' names--were cases Butler recused himself from.
  
• When you eliminate duplications, the wrong Finerty, and recusals, you get a list of eight--down tremendously from 35. That's some incredible shrinkage for a group called Club for Growth.

When you start reading those eight cases, you find other problems with their list:

• One case does not seem to have anything to do with lawyers from FFSJ. 2005AP1042 is credited by CFG as involving Robert H. Friebert, but his name is nowhere to be found. In addition, Butler's concurrence in that case takes a turn that you would think CFG and its ilk would like: "[I]t remains the role of the legislature," he writes, "not the judiciary, to rewrite legislation where necessary to implement positive public policy goals." Isn't that kind of the opposite of the judicial activism Butler's opponents accuse him of?
  
• One case, 2005AP002224, was a "voluntary dismissal."
  
• Several cases featured Butler seeming to rule (usually concurring) against the FFSJ attorney in the case. These are 2003AP001225, 2004AP000377, and 2005XX021704 (the Brian Burke case, where the court upheld the recommendation of referee Rick Esenberg to suspend Burke's license).

That gets CFG's list of 35 cases down to three--three--where a conflict of interest might have shown. How's that for shrinkage? Club for Growth, in what has to be among the most underhanded moves of all the underhanded moves we've seen so far this election, puts out a list of conflict-of-interest cases that is at best 90% crap. At best. Ninety percent. Crap.

But let's look at those three cases: 2004AP003238, 2004AP003179, and 2004AP00319. Butler was in the majority on all of those cases, and had he changed his vote--i.e., had FFSJ actually bought Butler with their "work" for him--it would not have made a difference. In all of those cases, at most only two justices dissented--that is, Butler was not the tie-breaking vote in any of those cases. (And in all of those cases, he sided with the more "conservative" side of the court, as well.)

Further, there is also no evidence--if CFG has some, I'd like to see it--that Butler did not inform the opposing parties that he had some affiliation with FFSJ. And those parties were not slouches--they included Northwest Airlines, for example, whom I would presume to have counsel smart enough to raise the issue if they thought there was a real conflict.

So that's what Club For Growth gets shrunk to--three cases where if there were a conflict of interest, it wouldn't have mattered.

Perhaps most upsetting in all of this is the origin of the complaint itself. Dohnal and his enablers, all slaves to the notion that a dimwitted but loyal Gableman is better than an independent Butler, are working on the presumption that Louis Butler is stupid. Somehow, they think the guy who was so good with the law to be called, affectionately by his friends and now pejoratively by his enemies--"Loophole Louie" has now lost all ability to follow the law. Butler is a smart man (reading through his opinions, concurrences, and dissents this morning was more intimidating than reading the parts written by the other justices, I tell you what), and to suggest that he is too dumb to follow campaign finance law and basic ethics is idiotic itself. But, then again, coming from Dohnal and CFG, I suppose that's what we should have expected.

Many thanks to the illusory tenant, who helped me through some rough patches in this analysis.

Gableman surrogates don't know how to Google

by folkbum (note updates--and see additional post here)

The righties have been giddy the last couple of days over a complaint (.pdf) filed with the Wisconsin Government Accountability Board by Bob "What Hoppened" Dohnal. The complaint seems to revolve around the fact that, for many years, Justice Louis Butler listed as his campaign address the address of a Milwaukee law firm, one of whose partners, John D. Finerty, was, for those same years, his campaign's treasurer. (This has not been true for much of the last cycle--at least as far back as I have emails from the Butler campaign.)

Whether or not this complaint has real merit remains to be seen--the fact that Finerty seems to have volunteered his time and the Butler campaign has paid the law firm a small sum to, I assume, cover the costs of what little time others at the firm may have spent sorting the Butler campaign mail, for example, into the right box for Finerty to deal with on his own time to me suggest some smoke but no fire. Of greater concern is the notion that Butler may have heard cases from attorneys at the firm without notice to other parties involved. However, this seems only truly damning if attorneys other than John D. Finerty were involved in the campaign, or if Finerty himself had cases before Butler. The former is not easily proved--guilt by association is weak circumstantial evidence--so if the latter could be proved true, there would be your smoking gun. (UPDATE: Attorney Jeremy Levinson also has done work for the Butler campaign, and, according to a campaign source, Butler has recused himself from some of Levinson's cases.)

Among the groups championing this line of attack is the Wisconsin Club for Growth. It was apparently the subject of their Wednesday "email update." I don't get their emails (believe me, I get enough spam promising "growth"), but Brian Fraley was kind enough to repost the whole thing on his blog. WICFG included this list of "evidence" in the case against Butler:

• The fact that the Friebert law firm served as Butler’s campaign headquarters since 1999.

• The fact that Butler’s own campaign stationery used the Friebert office as its official address, to accept campaign contributions and other campaign-related mail

• The fact that the Friebert law firm used its own stationery to file documents relating to the Butler campaign.

• The list of cases before the Supreme Court that involved Friebert attorneys, including John Finerty, Butler’s own campaign treasurer.

None of that evidence indicates that a single attorney besides Finerty worked on or for Butler's campaign (some, though not all, have given the Butler campaign money). But it's that last bullet point that would be the mushroom cloud of evidence here, right? That the Wisconsin Supreme Court heard cases brought by one of their own Justices' (former) campaign treasurers would be damning indeed. And, in fact, if you click on the .pdf document that the last bullet point originally linked to, you find a long list of SCOWI cases, grouped by attorney, including two different habeus corpus filings in the case of Sandra Lea Benedict v. Eau Claire Area School District under the name of attorney John D. Finerty.

Bang! Boom! Crash! Case closed! QED! Or, perhaps, ROTFLMAO. See, had Club for Growth done a cursory Googling, they would have found that Benedict was filed not by John D. Finerty, Sr., of the Friebert, Finerty, & St. John law offices, but rather John D. Finerty, Jr., of Michael Best & Friedrich--who lists the case prominently on his biography page.

John D. Finerty, Jr., has never, to the best I can find, worked for Justice Butler, nor has he ever even given Butler a penny in campaign contributions.

I know Wisconsin Club for Growth has the internet--they send out emails, apparently--so why they couldn't do that search, I don't know.

So all that's left is the circumstantial: One attorney at Friebert, Finerty, & St. John volunteered his time as Justice Butler's campaign treasurer, and has not set foot in the Supreme Court to argue in front of Butler and crew. The Butler campaign has paid Freibert for clerical time spent. No other Friebert attorneys' names seem to be associated with the campaign beyond routine contributions, easily found through WDC, something any opposing attorney could find in his sleep and raise at trial if necessary. (I would prefer had Butler disclosed it--though were every Justice to disclose every time a contributing attorney appeared before them, parties could be stuck at the courthouse for hours just listening to the disclosures. What I'd really prefer is public financing of court elections!)

(Update: The exception, as noted above, is that Jeremy Levinson has also done work for Butler, but Butler did recuse himself in some cases. I'm trying to sort out now whether any of the cases Butler recused himself from still made WICFG's list. At any rate, their key piece of evidence in the press release and their "email update" is Finerty--but they've got the wrong Finerty.

FURTHER UPDATE: The more I read CFG's list, the more it looks like sloppy work all the way around. For example, the list looks long because they have listed the same cases multiple times if more than one attorney may be associated with it. Also, many of the cases listed, when you check them out on the pages of wiscourts do not actually have attorneys from Friebert, Finerty, & St. John listed on the case. More to come as I keep looking.)

I don't make the final judgments, of course, but Dohnal's track record of complaints lately is poor and the "evidence" for this one seems thin where it is not outright false. This seems to me more like a last-minute ploy to generate negative press right before an election, rather than anything serious.

UPDATE: Attempts to contact the Wisconsin Club For Growth using the email address provided on their "contact" page bounce back with a "no such recipient" error. If you wish to contact WICFG, you should instead use staff@wicfg.com, which so far, at least, has not bounced.

Gableman misleads even as he laments that you've been misled

by folkbum

Right at the top of Judge Michael Gableman's JS Online chat today is question from a thoughtful conservative:

Q: Dean Mundy of Waukesha - Do you repudiate ads by those who are supporting your election and even your own campaign, that depict your opponent in a manner that most disinterested observers and even some supporters say is false and misleading? Why have you chosen to campaign this way?

A: Michael Gableman - I have quite clearly stated that I wish that third party groups would take their interests elsewhere to allow us to have a more positive tone in this election.

It's an excellent question, and Gableman takes a higher road in the chat than he did when he authorized the sleaziest ad from a campaign in recent memory. From the tone, you would think that Gableman would be all about the truth, honesty, and above-boardedness.

But if you thought that, you'd be wrong. From later in the chat:

My opponent has engaged in a consistent track record of judicial activism in which he has substituted policy considerations for the application of the plain language of the law. One example would be my opponent's decision in State v. Knapp, in which my opponent decided to overturn over 150 years of case precedent and to adopt a theory called "New Federalism" under which the rights of the criminals and criminal defendants are limited only by what the four who currently constitute the majority of the court say they ought to be.

If only that were true! But the fact is that there is pretty much not a single word of truth in any of that. For starters, calling Justice Louis Butler a judicial activist is a significant misnomer; yeah, it's the dog whistle Gableman supporters want to hear, but it is false. He also offers a novel definition of New Federalism; in fact, as I understand New Federalism, it's something conservatives ought like, as it is an attempt to re-decentralize a lot of the power currently vested in the federal government, including the control the Supreme Court of the United States exerts over state courts. The racist wing of the Republican Party calls it "States' Rights."

In any case, Knapp was not an expression of New Federalism, States' Rights, or any other Capital Letter Ideology. I defer to an attorney to explain:

[F]ar from ignoring either [SCOTUS precendents] Patane or Seibert, Butler devoted nearly one-third of the majority opinion's 46 pages to an in-depth discussion of both cases--in fact, the entire opinion can fairly be said to have been informed by Patane and Seibert [. . .].

You will have to read all of the post for the details; suffice it to say, contrary to what Gableman's supporters--and Gableman himself--would have you believe, nothing in Knapp deviates one iota from what SCOTUS precedent allows.

And, as long as I'm pointing you to the illusory tenant, he has this week done yeoman's work to eviscerate the claims of Gableman and his surrogates that Justice Butler is inordinately "pro-criminal." Go reward his efforts by reading and committing to memory the work he's done. Start at the top and just read down.

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.

Simple Answers to Simple Questions

by folkbum

Rick Esenberg asks, "But who's right?" The simple answer: Not Jessica McBride.* See iT and MP for the complicated answers.

This has been another edition of Simple Answers to Simple Questions.

*Could be paraphrased as Not Patrick McIlheran.

You can stop holding your breath: Esenberg speaks!

by folkbum

Seriously. Make Plaisted was about to turn blue. Luckily, he can let it all out in a fit of laughter. The collective liberal-Cheddarspherean impatience was prompted by Rick Esenberg's initial silence over the Michael Gableman Supreme Court ad I discussed here over the weekend; Esenberg's response came last night.

Sometimes I feel bad for Rick; he's a genuinely nice man and certainly one of the smartest people on the conservative side of the blogging aisle. But he's also their resident legal expert, the one whom the rest of the conservative Cheddarsphere counts on to set the tone for discussion of legal issues. That's a lot of pressure. Moreover, while he continues to insist that he has not endorsed anyone in the present Supreme Court campaign, he's been so in the bag for anti-Louis Butler forces that we pro-Butler bloggers find his neutrality dance laughable--some more colorfully so than others. But reading between the lines, I also don't think he cares much for Gableman, but of course he cannot say so--because of that very in-the-bagness.

In short, I do not envy him his position.

Esenberg does not defend the Gableman ad (the only defense I have seen came from Brian Fraley, who in the process seems to decide that defendants should not have defense attorneys; for his sake, I hope he's never arrested), and in fact uses some strong terms to denounce it:

I am very disappointed that the campaign ran that ad. If the point of the ad is that criminal defense lawyers are "unsafe" as judges, it works against one of the presuppositions of our adversarial system of justice (albeit a presupposition that the general public tends to be uncomfortable with). [. . .] I have nothing to do with the Gableman campaign, but I would have rather strongly counseled against this ad.

I have no problem with that. But before condemning the Gableman ad, Esenberg first has to take a detour and get het up about a pro-Butler ad (Wigderson calls this the "Bullock Rule"):

The Greater Wisconsin Committee has put out an ad criticizing Gableman for not obtaining sufficiently weighty sentences as a prosecutor and pronouncing insufficiently weighty sentences as a judge. I haven't caught any bloggers on the left objecting to the ad which would have made them all apoplectic had it been directed at the incumbent. How can we possibly tell whether these defendants deserved more? You can't assess the propriety of an outcome without some background. The disingenuous nature of the ad is magnified by the fact that the Greater Wisconsin Committee--funded by trial lawyers, unions and casinos--has absolutely no interest in electing someone who is "tough on crime.

Yes, you read that right: Esenberg is taking a group to task for making soft-on-crime ads. Now, he did criticize the Coalition for America's Families (once, twice) for their Butler's-soft-on-crime ads, which is commendable; but when he did so, Esenberg criticized their accuracy--he did not damn them for existing at all, as he seems to here with the GWC ad.

Moreover, Esenberg does not note that the soft/tough-on-crime conversation was started by Gableman and his enablers at CAF and the WMC. It seems to me that if Gableman is going to tout his own tough-on-crime credentials and disparage his opponent on that front, he opens himself up to criticism in that vein. When he claims to have prosecuted arson, it seems reasonable for his opposition to point out that he prosecuted exactly one arsonist who was acquitted at trial. Or that for all his scary sex-offender talk about Butler, Gableman as a judge seemed to go pretty light on the sex offenders.

But what really made me laugh--that great exhalation of the breath we'd been holding--was the last part of Esenberg's criticism of the GWC ad, about its "disingenuous nature." Puh-lease. Is he trying to tell me that Wisconsin Manufacturers and Commerce--pushing the Butler's-soft-on-crime schtick--has as its primary consideration the handful of criminal cases before the Court every term? Does he think the the big-business money-men behind CAF (like industrialist Terry Kohler) are most concerned about sex predators? Riiiight. The response from WMC defenders is always that WMC wants safe places to do business. Does Esenberg think that union members, casinos, and plaintiff's attorneys would rather have crime-infested places to live and work, that they don't have as much interest as WMC in safety and security? Come on, Rick--that's just ridiculous.

MORE: Pundit Nation.

How do your pants not burst into flames for this?

by folkbum

Then the [Gableman] ad shifts gears, saying, "Louis Butler worked to put criminals on the street," followed by a picture of [Justice Louis] Butler next to a grainy mug shot of convicted child molester Reuben Lee Mitchell. The ad says Mitchell was convicted of raping an 11-year-old girl with learning disabilities. "Butler found a loophole; Mitchell went on to molest another child," it concludes.

What the ad doesn't say is that Butler was Mitchell's public defender--not a judge--on his appeal. He got the case overturned, but the state Supreme Court reinstated the conviction. Mitchell committed the later crime after serving his sentence, according to Gableman's campaign.

I mean, we all got to know Mark Graul (Gableman's most visible campaign hack) as a skunk and an Abramoff-loving sleaze-bucket from his work with Mark Green and Annette Ziegler. But to suggest, as Graul does, that this ad is fair is just about as clear a lie as you can get without actually having to whittle your nose back down to size. I mean, "fair" is a subjective term, and Graul's perspective on the race probably skews whatever sensibilities didn't get bought off from him when he worked for the Republicans in Congress.

But Graul also suggested it was accurate. When I say, "I ate a sandwich for dinner and the sun went down," I'm being, I suppose, accurate, only insofar as I don't intend for you to think that my eating a sandwich caused the sunset. But my concern for your accurate sense of my meal-eating in relation to nightfall would cause me never to say such a dumb thing, because I know that it leaves an inaccurate impression. As does this ad. As does "Milton wrote Paradise Lost. Then his wife died and he wrote Paradise Regained," to borrow the old joke.

Seriously. How do you make this ad and face your wife and children in the morning? More: Mathias has the ad and a long, thoughtful response. iT points to the AP version of the story, which all but calls Gableman and Graul liars to their faces. iT also reminds us that Gableman is soft on crime. And the Brawler doesn't much care for Graul, either.

EVEN MORE: Plaisted on the race card.

ALSO: Butler's campaign.