Randy Koschnicks Phantom 60 Percent Number “- Where Is the Proof?

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Judicial ethics are essential in Wisconsin.

Jefferson County Judge Randy Koschnick has made the claim Wisconsin Supreme Court Chief Justice Shirley Abrahamson sides with criminals 60 percent of the time. While a number of media outlets have reported this phantom figure, Koschnick has refused to adequately explain what this number represents or how he arrived at it.

Equally disconcerting is that implicit in Koschnick’€™s argument using these statistics is that he is promising to always vote in favor of a prosecutor’€™s side, regardless of the merits of the case. The Judicial Code of Conduct is clear judicial candidates are specifically prohibited from promising how they will rule on cases.The following considerations must be made before using the Koschnick phantom figures, which he offered at his first public debate with Justice Abrahamson and is likely to continue to repeat at tonight’€™s debate, absent any challenge to substantiate his claims.

1. Koschnick has refused to provide a full catalog of the cases by which this figure was derived. Unless Koschnick can back up this dubious number with actual facts, the figure has no basis. Consider Michael Gableman made a similar allegation against Louis Butler in 2008 and when asked about where the figure came from Gableman admitted he had no idea where the number was derived and made the extraordinary implication that because it hadn’€™t been proven incorrect, it should be accepted as fact ‘€“ even in the middle of a heated campaign fraught with allegation of disinformation, distortions and racism.

Butler said Gableman had stated that the justice has sided with criminals 60 percent of the time. Butler said his review of all cases since he joined the bench found he upheld criminal convictions 75 percent of the time.

Gableman said the 60 percent figure came from a study by an outside group.

‘€œI don’€™t know if the number is 30 percent, 60 percent, 80 percent or 90 percent,’€ he said. ‘€œI’€™m unaware of any study that contradicts those numbers.’€

[Source: WISN-TV, Associated Press, 3/12/08]

Koschnick’€™s spokesperson said his figure is based on criminal appeals decided in 200 cases before the court from 2000-08. Without a full list of the cases, however, the context of this allegation is specious at best.

2. Koschnick’€™s Alleged Methodology Includes Tiny Percent of Supreme Court Decision Making. The Supreme Court receives hundreds of requests to hear cases ‘€“ and by estimate rejects 95 percent of all requests. The math Koschnick claims to use ignores the vast majority of criminal petitions that were denied a hearing by the Justice Abrahamson and the court. In addition, Koschnick’€™s suspect time period involves cases from one quarter of the time on the Supreme Court by Justice Abrahamson. Considering all of this, Koschnick is at best, using one percent of all decisions on cases made by Justice Abrahamson.

3. Koschnick’€™s allegations absent proof provide no perspective on whether the claim is legitimate. By refusing to provide a list of the cases to prove his methodology, Koschnick the public and the media have no way to determine whether the allegation about ‘€œsiding with criminals’€ is accurate in any way. This is a highly-charged allegation and the burden of proof rests on Koschnick to show his is an accurate claim. Koschnick’€™s ability to have the allegation reported without requiring proof would be much like a defendant going before a judge presumed guilty and needing to prove one’€™s innocence.

Many of these decisions do not result in the release of a criminal defendant, but rather they are procedural matters that are remanded to the circuit court for further proceedings.

The media and the public have a right to know how badly Koschnick is twisting the truth. His unwillingness to provide the full details of his methodology raises serious questions about the accuracy of the allegation. It also raises the question whether these figures should be reported without more scrutiny of their accuracy.

Wisconsin deserves a judiciary with the highest ethical standards and integrity. Making false allegations against a colleague would appear to be a violation of the public trust.

Before it reports these questionable figures again, the news media owe it to the public to ask Koschnick to substantiate them ‘€“ if he can.

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Scot Ross served as Executive Director of One Wisconsin Now & the Institute from 2007 to 2019.