Monday, February 09, 2009

Revisiting Oswald, Scot Ross, and Judge Koschnick

In Friday's Waukesha Freeman, Scot Ross of the organization with the Fascist-sounding name, One Wisconsin Now, attempts to take issue with my January 22nd Waukesha Freeman column, “Supremely different.” In that column I argue,

The concern should be less about Koschnick’s defense of a criminal {Ted Oswald} as a defense attorney than whether Koschnick would be a liberal jurist who would invent law as Abrahamson did in the Knapp case. It is clear that he would not, and perhaps that is why the prosecutor in the Oswald case, former Waukesha County District Attorney Paul Bucher, has endorsed Koschnick.

Ross, trudges out the old charge, hypocrisy, and summons forth a terribly incomplete and out of context quote from a blog post I wrote during the Gableman campaign.

On the subject of public defenders running for judge, the full quote:

I think it's fair to remind the voters that Butler was a public defender. Here's an ugly little secret. People don't like defense lawyers unless they need one. Then they're thanking whatever deity is at hand. Now, I like defense lawyers. I like all lawyers unless they're sitting on committees trying to control an election or, even worse, sitting on an election board. But I'm the exception. Most people root for the prosecution. Why do you think Law and Order is so popular? Do you think it would still be so popular if the public defenders ran circles around Arthur Branch?

If being a public defender was popular with the public, there would be more of them on the public payroll and they would be paid more.

I even think it's fair to run an ad that reminds the voters what kind of people the public defender defended as part of his career path. Heck, if I were Darrin Schmitz (Gableman's campaign manager), I'd pull out the whole portfolio and ask at what point did Butler no longer want to be a public defender. After this murderer? After this rapist?

If you don't like it, don't choose becoming a public defender as a career path.

Ironically, the quote comes from a post criticizing Butler’s opponent. Clearly I don’t have a philosophical objection to public defenders becoming a judge, or even a Supreme Court Justice. The comment was an understanding and explanation of the campaign tactic.

It also does not contradict what I wrote in the column, where I discuss the Oswald case at length.

When Koschnick was still a public defender, he was assigned Waukesha’s most notorious murderer, Ted Oswald. Oswald, along with his father, was convicted of killing Waukesha police Capt. James Lutz as he fled a bank robbery in 1994.

Writing in The Freeman, Belling accused Koschnick of trying to help Oswald "get away with murdering a cop" by claiming Oswald was controlled by his father. Left-wing blogs and One Wisconsin Now agree the case should hurt Koschnick, arguing it’s hypocritical for the judge to run a "tough on crime" campaign.

It’s a little more complicated than either would make the issue.

Koschnick was assigned the case, and his defense was designed to get his client convicted of a lesser charge, second-degree murder. The penalty would have been 60 years instead of life in prison. A far cry from arguing Oswald should "get away with murdering a cop."

Sorry to disappoint Ross, but since I did not “go apoplectic” over Butler, I can hardly be expected to “go apoplectic” over Koschnick, especially when it was clear from my column that Koschnick was assigned the case and the prosecutor in the case has endorsed him.

Why the unwarranted hypocrisy charge? Because it’s a way of saying, “Ignore this person. He’s a hypocrite.” Hypocrisy is the ultimate crime enhancer, and the punishment is ostracizing. Sleeping with a teenage girl is criminal. The rock star that sings about sleeping with hundreds of women continues to sell more song downloads. The televangelist is driven from the public stage in shame. Ross is hoping to silence conservative critics of his favored candidate, Justice Abrahamson.

It’s the only tack Ross has. Ross cannot defend Abrahamson from the charge of judicial activism. In discussing the Knapp case, Ross would rather focus on the “bloody shoes” than on how it took two tries to resolve the “bloody shirt” evidence. How Abrahamson was overturned by the US Supreme Court, only to invent another way of suppressing the evidence, one not mentioned in her earlier ruling. How Abrahamson was just throwing reasons up to justify her previously staked-out position, the very definition of judicial activism. If Ross tried to explain it, the public would turn against his candidate.

Politics makes strange bedfellows, and in this case Ross finds himself in bed with Mark Belling. (I hope Belling doesn’t catch an unexplainable rash.) Belling’s position on the Oswald case and Koschnick’s past as a public defender is understandable, even if I don’t agree. But surely Ross and his allies are not suddenly critical of the idea that a public defender could ever graduate to the bench, or perhaps become a Supreme Court Justice? Then why bring the Oswald case up repeatedly? To what end is Ross pursuing, except to force the connection in the minds of the voters?

But then, that would be hypocritical of Ross, no?