THIS IS SO WEIRD…..did Justice Prosser choke Justice Bradley? or did she attack him first? did he choke her or did she make it up? And what’s up with the CHIEF JUSTICE? Where was she and why does her name surface in all these incidents? Something really, really, really, really weird is going on…..The propaganda spin, in a dizzying lack of reason, and excess of hypocrisy, tries to shift responsibility for the incident to Justice Bradley, and to Chief Justice Abrahamson. The only 'something' that is weird is how the heck voters could have elected Prosser (if they did - his re-election had serious problems with vote security and legitimacy), given his past record of issues, including control of his temper.
Let me quote to you from the applicable Wisconsin Code of Judicial Conduct, that applies to judicial discipline, including the Wisconsin Supreme Court members, and give credit to the Wisconsin State Journal for confirming my reading of the Code of Conduct:
"discipline and correct judges who engage in conduct which has an adverse effect upon the judicial administration of justice and the confidence of the public and the judiciary and its process."Judges, which includes Justices and the Chief Justice, are required by chapter 60 of the Judicial Code to :
"uphold the integrity and independence of the judiciary"Although I am not a legal professional, it would seem obvious to anyone that Justice Prosser's previous swearing at Chief Justice Abrahamson, calling her a bitch, and threatening to destroy her would appear, clearly and overwhelmingly, to violate those parts of the Judicial code.
"avoid impropriety and the appearance of impropriety"
"be civil in their dealings with one another"
"abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive."
A brief summation of events, Justice Prosser, who has lost control of his temper on multiple previous occasions and behaved inappropriately and abusively, was asked by Justice Bradley to leave her chambers.
There doesn't appear to be any controversy or disagreement about the request for Prosser to leave.
He refused to leave. Right here, before the physical part of the alleged conflict, I have a problem with Prosser's conduct. It would seem prima facie that in refusing to leave, Prosser behaved uncivilly, and that in refusing to leave, PROSSER precipitated what followed, that it is PROSSER who is clearly the catalyst.
Justice Bradley reportedly approached Justice Prosser, expressing displeasure with offensive comments made by Prosser and his persistent refusal to leave. Justice Bradley had the right to be in her chambers; Justice Prosser, once any permission was rescinded, did not, and under the common law premise of interference, which appears to occur as well in Wisconsin Law relating to self-defense, from my limited and untrained background, gave Justice Bradley some reasonable right to approach Justice Prosser in any reasonable way that defended herself from that interference.
Some versions of the events say she had her hands balled into fists. None of the accounts appear to assert that she struck at, or swung at, or reached out towards Prosser. Only one account, apparently from someone aligned politically with Prosser, interprets having her fists balled up was a POSSIBLE threatening gesture. I'm not a lawyer, I don't pretend to be one here; but Prosser appears to me to so clearly be in the wrong, that it seems ludicrous to claim PROSSER is the victim, not Justice Bradley.
If Prosser felt threatened at any time.......WHY (allegedly) did he put his hands on Justice Bradley, instead of using good judgement, good manners, and self control, BY SIMPLY LEAVING? His actions suggest far more strongly that he was angry and lacking self-control, that he was belligerent (AGAIN), and that HE was acting in a physically confrontational manner. To leave a confrontation rather than to engage physically, so far as it is possible, is something we instill in children, and expect from rational adults as mature behavior.
Prosser himself has been known to ball up his fists in anger, as these two YouTube videos demonstrate, and he has on those occasions gestured in a threatening manner, all too quick to use his hands aggressively:
This is not the behavior of a man with appropriate judicial temperament.
Had it not been for the intensity of political division brought on by Governor Walker's actions, it is far more likely that Prosser would have been treated more as an individual, assessed on his merits, and less as an expression of political solidarity. It appears clear to me that the heat of partisan politics put conservatives in the position of supporting a bad candidate, and that the conservatives did not appear to concern themselves with the merits of their candidate, but acted out of strictly partisan issues. And now that is coming back to bite them in the backside, so the conservatives who like to talk loud and large about supporting people being responsible must, out of embarrassment, try to dodge that responsibility, trying to shift responsibility and blame to someone else, to anyone in opposition to them.
Justice Bradley has not claimed that Prosser applied pressure, actively choking her; she has claimed that he put his hands on her neck in a choke hold position, which was interrupted by another Justice. I don't particularly find it plausible that Justice Bradley posed a reasonable threat to Justice Prosser.
It was inappropriate for Prosser to touch Bradley AT ALL in anger. Doing so appears to violate the Code of Judicial Conduct.
An utterly lame explanation for this was that Justice Prosser accidentally 'touched' Bradley's neck in a defensive gesture.
Reaching for Justice Bradley's throat is not a defensive gesture. Crossing one or both of his arms to block Justice Bradley - had she actually moved her hand and arm towards him - would have been a defensive gesture. Turning away from Justice Bradley would have been a defensive gesture. Reaching past her arms to her throat? That is NOT a defensive gesture, that is an offensive gesture.
Don't simply accept my interpretation of the body language, however obvious it appears to be. Loot at these sites which address variations of clenched fists and defensive arm gestures:
http://www.indiabix.com/body-language/hand-and-arm-gestures/
"Research by Nierenberg and Calero on the hands-clenched position brought them to the conclusion that this was a frustration gesture, signalling that the person was holding back a negative attitude."http://learn-skills.org/wordpress/body-language-and-the-nonverbal-dictionary/10/2008
Leaning forward with closed arms and/or hands = Aggression, fighting stancehttp://www.blifaloo.com/info/lies.php
Clenched hands = Frustration, anger
Interactions and Reactionshttp://www.efficient-technologies.com/bodylanguage/armsgestures.html
• A guilty person gets defensive. An innocent person will often go on the offensive.
Hand and Arms GesturesDefensive gesture - fold arms across chest, not reach for someone's throat.
Tightly clenched hands on the other hand (no pun intended!) reveal that a person is frustrated or has a hostile attitude. Arms Gestures: When a person folds his/her arms about the chest firmly, a feeling of being threatened may exist, since most people may use this gesture as a defensive manoeuvre . (my emphasis added - DG)
While I am certainly not especially knowledgable about Wisconsin laws pertaining to battery, the generally applicable duty to retreat would appear to pertain to any unwelcome or aggressive contact made by Justice Prosser towards Justice Bradley, in Justice Bradley's chambers after he was asked to leave:
In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided conflict and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually using force.and
Some American jurisdictions require that a person retreat from an attack,and
Similarly, some courts have found no duty to retreat exists when a victim is assaulted in a place where the victim has a right to be, such as within one's own home. [1]. The Model Penal Code [2] suggests statutory language that also recognizes an exception to the usual duty to retreat when the victim of the attack is in his or her own dwelling or place of work.After being requested to leave Justice Bradley's chambers, arguably Justice Prosser had NO right to remain, or even to defend himself had he incorrectly interpreted that Justice Bradley was attacking him or about to attack him.
Many states employ "stand your ground" laws that do not require an individual to retreat and allow one to match force for force, deadly force for deadly force. The Washington State Supreme Court, for example, has ruled "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be."
But the right continues to assert that apparently Justice Prosser is innocent by reason of right wing insanity, on the sole justification that he is a Republican, and as one of theirs, they will defend him no matter what he does.
In aid of this defense of the indefensible, we have the call for Chief Justice Abrahamson to resign:Chief Justice Shirley Abrahamson is one of the most respected jurists in the country, and in our history. Discipline of the Wisconsin Supreme Court Justices is the responsablity of the Judicial Commission, which must bring a complaint before the court for action.
And while I have no idea who is off the wall (Justice Prosser or Justice Walsh or both), I do know one thing, CHIEF JUSTICE SHIRLEY ABRAHAMSON sure is not doing her job to lead the court and to give confidence to the people of Wisconsin. She needs to step aside and let someone else attempt to run that zoo.
To suggest that Chief Justice Abrahamson should resign, for not controlling the outbursts by Justice Prosser, while conspicuously NOT calling for the resignation of Justice Prosser, who has appeared to repeatedly violate the laws relating to judicial conduct, is the height of irresponsibility, insanity, and hypocrisy. Where is the call from the right to hold Justice Prosser accountable for not leaving Justice Bradley's chambers, ESPECIALLY if he felt he was attacked or could be attacked, under the Duty to Retreat? Where is the call for resignation and accountability for Justice Prosser's attack on Chief Justice Abrahamson?
WHERE?
I am appalled that this patently unfair double standard is blithely accepted by the right without a break, a pause, without the slightest critical thinking or questioning. SHAME ON YOU. YOU, yes YOU, are facilitating precisely this kind of apparent misconduct by Justice Prosser.
Is THIS what it means now to be conservative? Because there is NOTHING prinicpled about it.
This is a brilliant post. You have covered the law of self-defence very well.
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