Wednesday, June 29, 2011

Merriam Webster: Choke: To Block Normal Breathing By Obstructing the Trachea

The incident that occurred on Monday, June 13 between Justice David Prosser and Justice Anne Bradley is getting murkier by the day.  Much of the follow-up reporting seems to be affected by political ideology.   

Let's review the bidding.

1.  The original piece by Bill Lueders of the Wisconsin Center for Investigative Journalism, was published this past Saturday morning in the Wisconsin State Journal on-line edition.  Lueders quoted three anonymous sources describing an event "inside" the office of Justice Bradley during which she was supposedly attacked by Justice Prosser after she insisted he leave her office.  According to Lueders, all three sources told him that upon Bradley demanding that Prosser leave her office, he placed both his hands around her neck.  What Lueders didn't say, however, is that his three anonymous sources actually witnessed the altercation, just that it occurred as described.  Lueders report also said that the incident was actually witnessed by "other justices."  So that report put at least four justices at the scene of the incident, the two participant justices and at least two and maybe more justices standing in the vicinity.  Based on the report, Justice Bradley was not one of the unnamed sources of Mr. Lueders, as he specifically reported that she had declined comment when contacted by Wisconsin Public Radio, which worked with Lueders in producing the initial report.

2.  The second report was by the Journal Sentinel on Saturday afternoon.  The Journal Sentinel report was that it had an unnamed source that reported that six of the seven justices were in Justice Bradley's chambers (office) on the late afternoon of June 13, a Monday, to informally discuss the court's release of the controversial decision overturning Judge Sumi's injunction against the law eviscerating public union collective bargaining rights. The Journal Sentinal also reported that there were two versions of the altercation.  In one, the event occurred as Lueders had initially reported it.  Justice Bradley insisted that Justice Prosser leave her chambers and he became angry and placed his two hands on her throat.  The Journal Sentinel reported that this version was supported by at least two sources, one of whom may have been Justice Bradley herself, as she issued a statement to the Journal Sentinel on Saturday afternoon:
"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Journal Sentinel.
The Journal Sentinel article then reported on an alternative version of the incident.  In this alternative version, Bradley rushed at Prosser with fists raised and in the course of defensively blocking her attack, his arm came into contact with her neck.  The article quoted "sources" backing up this version. Unfortunately, as in the Lueders article, the Journal Sentinal did not affirmatively assert that its "sources" for the competing versions actually witnessed the altercation.

3.  Yesterday's National Review On-line had an article by Christian Schneider that adds several interesting twists to the accounts of the incident. National Review has a conservative ideological bent. Here are the more interesting twists Schneider introduces into the narrative of the confrontation, and some brief commentary on them. 
In the past two days, multiple sources with first-hand knowledge of the incident have been able to provide more details as to what exactly happened behind closed chamber doors.
The week before the legislature was set to re-pass the collective-bargaining provision, three of the four conservative justices were ready to issue a ruling reinstating the union law as originally passed. Prosser, on the other hand, wanted to wait longer, to avoid the appearance that the court was rushing their decision through. Prosser thought he had an agreement with liberal Chief Justice Shirley Abrahamson to delay release of the opinion until Tuesday of the following week.
As Monday arrived, there was no word from Abrahamson on whether the decision would be issued the next day. At 5:30 p.m., Prosser and the other conservative justices marched around the chambers, looking for Abrahamson, who was found in Justice Bradley’s office. Prosser stood outside Bradley’s door, talking to the justices in Bradley’s office. The discussion got heated, with Prosser expressing his lack of faith in Abrahamson’s ability to lead the Court.
According to one witness, Bradley charged toward Prosser, shaking her clenched fist in his face. Another source says they were “literally nose to nose.” Prosser then put his hands up to push her away. As one source pointed out, if a man wants to push a woman who is facing him, he wouldn’t push her in the chest (unless he wants to face an entirely different criminal charge). Consequently, Prosser put his hands on Bradley’s shoulders to push her away, and in doing so, made contact with her neck.
At that moment, another justice approached Bradley from behind and pulled her away from Prosser, saying, “Stop it, Ann, this isn’t like you.” Bradley then shouted, “I was choked!” Another justice present replied, “You were not choked.” In a statement following the incident, Bradley maintained Prosser “put his hands around my neck in anger in a chokehold.”
On Monday night, Bradley called Capitol Police Chief Charles Tubbs to talk to him about the incident. On the morning of Wednesday, June 15, Tubbs joined the justices in a closed-door meeting, where he discussed “issues relating to workplace violence.”
During the meeting, Chief Justice Abrahamson actually reenacted the incident on Chief Tubbs — no doubt an amusing sight, as the diminutive Abrahamson mimicked choking the tall, portly police chief. During her demonstration, Abrahamson emphasized that Prosser had exerted “pressure” on Bradley’s throat.
Prosser. “That’s only because you broke us apart,” shot back Bradley. This exchange led several meeting attendees to believe Bradley was making up the charge, as they took her rejoinder as an admission that there was no pressure applied to her neck.
Let's assume that Mr. Schneider is rendering an honest report of his investigation.  The "multiple sources with first hand knowledge of the incident" are probably two or more supreme court justices.  No one below that pay grade would be likely to speak to a reporter about the incident.  If a law clerk or secretary working in Justice Bradley's chambers witnessed some or all of the event, I am guessing they would clam up about it. Justice Bradley and Chief Justice Abrahamson had versions of the incident consistent with Justice Prosser being the aggressor, so they were not among the sources.  If I am correct, then the multiple sources have to have been two or more of the justices that went looking for Justice Abrahamson on the 13th, which included Justices Prosser, Roggensack, Ziegler and Gabelman.  So whoever spoke to the NR Online reporter was motivated to get a different version of the events out in the press than had been published up to that time.  The NR Online story is written as if there were at least two sources for it, neither of whom was Prosser or Bradley.  One or more of the justices who talked to Schneider must have also concluded that the "closed door" meeting with Chief Tubbs on June 15 was fair game to describe to a reporter, including a belief that Bradley was inventing the charge that she was the victim of an attack.  Those kind of discussions with the NR Online reporter are not consistent with a desire by the justice or justices to try to restore some semblance of order and collegiality to this awful and dysfunctional mess.

What is interesting in the Schneider report is that Justice Prosser had thought he had secured an agreement from the dissenting justices (or perhaps just the Chief Justice) to issue the Ozanne - Open Meetings lawsuit opinion on Tuesday, June 14.  Having someone go back on what you feel is an agreement can be very frustrating. That might help explain any flash of anger that Justice Prosser may have shown in the encounter.

But how more frustrating may it have been to Justice Prosser or other justices? ("At 5:30 p.m., Prosser and the other conservative justices marched around the chambers, looking for Abrahamson.")  Recall the public statements by Jeff Fitzgerald, Assembly Speaker, the day before the incident in Justice Bradley's chambers.

Here is the Milwaukee Journal Sentinel's coverage at the time:
The Legislature will put Gov. Scott Walker’s limits on collective bargaining into the state budget Tuesday if the state Supreme Court hasn’t ruled on the matter by then, Assembly Speaker Jeff Fitzgerald (R-Horicon) said Monday.
“If need be, we are going to have to pass collective bargaining again,” Fitzgerald said at a Capitol news conference. “My caucus is more solid on that collective bargaining vote than they ever have been.”
But he said he does not believe lawmakers will have to take that vote because he thinks the court will act soon. “I’m an optimist,” he said. “I still think they might rule yet.”
 The Oshkosh Northwestern had an even more interesting quote:
Fitzgerald said Monday that the changes Walker is seeking will be added to the state budget as an amendment either Tuesday or Wednesday.
Republican leaders have said for weeks that would be the plan if the law remained held up by the courts. Fitzgerald says he remains hopeful the Supreme Court will decide by midday on Tuesday, but the court has given no indication as to when it will rule on the case.
Why in the world would Jeff Fitzgerald have made such a statement?  How would he have pinpointed the likely issuance of the decision to a time certain on a date certain?  Could he have known that such a public statement would not prove infuriating to a majority of the court because the decision was a fait accompli, merely awaiting issuance?

Court decisions are supposed to be top secret until they are issued. You don't want one side to a lawsuit trading on insider information to settle a case it is about to lose.  You don't want third parties to buy or sell stock based on insider information about a court decision that could drive the stock price of a company up or down.  You don't want some lawyer working on insider information to quickly settle some unrelated lawsuit that would be controlled by a Supreme Court decision about to be issued in a different case.

I have no way to know if Justice Prosser or any of the other justices were angry on the 13th because word of the planned issuance of the decision on the following day had been conveyed to Republican legislators. I must assume that all the justices are honorable and would honor the "secrecy" aspect of issuing decisions. Jeff Fitzgerald may have just been talking like a sausage when he seemed to know when the decision would be issued. But exploring the possibility that the plan to issue the decision on June 14 was leaked to one or more persons outside the court is an aspect of this entire mess that should be part of the Dane County Sheriff Department's and Judicial Commission's investigations.

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