Bruce Murphy
Murphy’s Law

Supreme Court Race All About Sex Offenders

Which is strange because the state high court will probably never rule on such cases.

By - Mar 1st, 2023 04:12 pm
Milwaukee County Judge Janet Protasiewicz and former state Supreme Court Justice Dan Kelly. Photos courtesy of the campaigns

Milwaukee County Judge Janet Protasiewicz and former state Supreme Court Justice Dan Kelly. Photos courtesy of the campaigns

Just one day after the February 21 primary election, state Supreme Court candidate Janet Protasiewicz released her first ad for the general election, an attack on her opponent Dan Kelly entitled “Predator.”

“Dan Kelly won’t keep our communities safe,” the ever-ominous voice of such ads informed us.

“As a lawyer Kelly defended child sex predators who posed as ministers in order to prey on vulnerable young girls.”

The ad goes on, adding more lurid detail, leaving us to conclude that if Kelly is elected to the court, he’ll be letting villainous predators loose to prey on our children.

Which is nonsense. The Supreme Court isn’t a trial court that decides the sentences for child predators or any criminals. Nor is it likely to review sentences by lower courts for sexual offenders.

“The Wisconsin Supreme Court rarely reviews sentences. Such cases also always end with a court of appeals decision,” notes Madison attorney Lester Pines, who has handled more than 15 cases before the high court going back to the 1980s.

Pines, a liberal who supports Protasiewicz, adds that “The sexual assault statutes in Wisconsin are well-established and unlikely to be subject to interpretation by the Supreme Court in the future.”

And yet you’d swear it was the most important issue the court will face.

The liberal group Better Wisconsin Together spent $829,000 during the primary on ads bashing conservative Jennifer Dorow as soft on crime. “We depend on judges to keep our families safe,” one ad warned, “But Jennifer Dorow has a long history of keeping criminals, even sexual predators out of jail.”

Meanwhile the ad shows us a picture of the Waukesha County Judge and a list of court cases with the statement “HISTORY OF KEEPING PREDATORS OUT OF PRISON.”

During her years as a defense attorney Dorow handled some 180 cases, defending clients charged with many different crimes, including some for sexual assault or sex with a child age 16 or older.

Had she gotten through the primary instead of Kelly it’s a safe bet Protasiewicz would have targeted Dorow with an ad entitled “Predators.” Indeed the Protasiewicz campaign team clearly expected this to be an issue, and released an ad during the primary telling us how tough she was on crime, with her declaring that “I’ve locked up murderers, rapists, and child sex predators.”

Protasiewicz soon got attacked on the same issue, with Dan Bice reporting on three cases where the Milwaukee County Circuit Court judge gave no prison time to three defendants, including one accused of sexual assault and a case involving a 17-year-old accused of sexual contact with young girls.

The story included a comment from state Republican Party spokesperson Rachel Reisner that sounded just like those attack ads. “Judge Protasiewicz’ unwillingness to give even a day in prison to violent child rapists shows just how radical she is and why she is unfit to sit on Wisconsin’s highest court…Wisconsin families can’t trust Judge Janet to keep us safe.”

The theme was amplified in an attack ad against Protasiewicz by the Wisconsin Manufactures and Commerce, telling us she sentenced a child rapist to time already served in jail awaiting trial and probation. “Probation for a child rapist?” the horrified voice-over by a woman asks.

Yesterday a variant of that ad was released by the Fair Courts America PAC, funded by Republican fat cat Richard Uihlein, that is spending millions to elect Kelly. Judge Protasiewicz PUT CHILD RAPIST BACK ON OUR STREETS, the ad’s text tells us, while the voice-over warns she “puts our families at risk.”

Some conservatives complained that Dorow was just doing her job as a defense attorney and you don’t attack the attorney for what the client did. It’s an argument liberals had always made, but such niceties have long ago been rejected, ever since the reprehensible 2008 campaign for state Supreme Court, when conservative challenger Michael Gableman ran an ad falsely claiming that Supreme Court Justice Louis Butler “found a loophole” to get a convicted child molester off on a technicality who then went on to commit another crime. In fact, the child molester was found guilty, served 11 years in jail, and committed a crime after getting released.

Gableman faced a disciplinary hearing for an ethical violation that eventually went before the Wisconsin Supreme Court, which had a tie vote, 3 to 3, so no action was taken. That, too, has helped bring us to an era when any sort of mud slinging by either side is okay in once-august Supreme Court races. The WMC was a leader in ratcheting up the cost and ugliness of these races over the last two decades. The group wants justices who rule in favor of corporations, and if it takes an ad sliming Protasiewicz on a completely different issue, one she will likely never rule on, so be it.

As Pines notes, the Supreme Court hasn’t reviewed sentences by trial courts since the Legislature created the state Court of Appeals in the late 1970s and which handles such appeals. The state’s highest court, he notes, takes on cases that involve interpretations of the state Constitution, disputes between the executive and legislative branches, rules or standards for how the lower courts operate and major issues of statewide importance.

Thus the court dealt with the issue of legislative redistricting and gerrymandering, and that could be revisited in the future by the justices. It’s also likely to rule on whether the 1849 abortion ban should be enforced or later (post Roe v. Wade) state laws and court decisions allowing abortion should apply. And it will face questions of how state elections should be run under current law and state Elections Commission rules. Those are the kinds of cases the court will face and all these lurid sex crime ads by candidates on both sides are an ugly sideshow that has almost nothing to do with the high office they seek.

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6 thoughts on “Murphy’s Law: Supreme Court Race All About Sex Offenders”

  1. lccfccoop2 says:

    Thanks for writing this. I keep telling non lawyer friends that the crime ads are a total distraction and that the S.Ct does not hear many issues coming from criminal cases.

    But I really can’t fault Protascewicz for making a pre- emptive strike.
    We all remember Louis Butler losing partly because he didn’t hit back on the “loophole Louie” smears.

  2. says:

    Progressive candidates should NOT follow right-singers down the slime hole. When garbage like the “predator” ads becomes normalized, we all lose. Give us something to vote FOR!

  3. Duane says:

    Yea, the nonstop “my opponent loves criminals” ads are irritating. I wish “money in politics” were made more of an issue by opposition candidates and the media. Conservative judges are responsible for the current corrosive political climate of legalized political bribery. Why not call them out on that? The “More Perfect Union” website article “Who Is Behind the Supreme Court Case Attempting to Kill Student Debt Relief?” outlines how money interests are the forces behind bringing legal cases regarding Biden’s student loan forgiveness before the SCOTUS. It also shows how openly chummy SCOTUS is with these same money interests. Corporate media has nothing to say about it. Does anyone think that when SCOTUS shoots down Biden’s loan forgiveness program that it won’t be because the SCOTUS is a conservative political operative? Dan Kelly was appointed by notorious Koch Brothers lapdog Scott Walker. He also essentially graduated from zealot Pat Robertson’s law school. But somehow these aren’t issues talked about in most media, and not even mentioned in political ads from his opponent Janet Protozoa.

  4. Neal Brenard says:

    Do people that actually vote still watch TV with ads? And if they do, do they actually watch the ads? I honestly don’t know, but like the Journal-Sentinel’s massive readership declines over the past 10 years as an example, it’s hard to believe that broadcast television (another outmoded form of mass media) hasn’t declined to a point of near irrelevance as well.

  5. Bruce Murphy says:

    Neal, there’s no doubt TV ads have less impact today. But the ads run on social media, too (often modified). As for the TV ads, older voters typically have the highest turnout and are also the biggest demographic for TV. And the ads often appear in sports broadcasts which viewers are more likely to watch in real time, meaning they see the ads.

  6. Jake formerly of the LP says:

    I’d agree that Protasiewicz’s better argument is to point out that she is the only candidate that offers a chance to unrig the situation in Wisconsin. This includes reconsidering a 174-year-old abortion ban, ending these gerrymandered Legislative maps, and making sure the Court doesn’t overturn the 2024 election results in Wisconsin.

    Kelly is the status quo candidate, where a lot of people are held back, while a lot of well-connected lowlifes slink away. But I’d also highlight Kelly’s “work” for the GOP during the 2020 election, and afterwards, and hook him up with Gableman and other GOP BS in the courtroom.

    It’s sort of a “go high, but go hard” strategy that feels like a winner here. Kelly/Uihlein can try “lirrelevant “weak on crime” stuff, but that doesn’t work so well against a woman with a Polish last name that once worked as a prosecutor (unlike Dan Kelly, who’s never prosecuted anyone in his career of hackery)

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