An appeals court decision issued Thursday could give the upper hand to hundreds of protest singers who were arrested and fined during last summer's police crackdown on Solidarity Sing Along participants at the state Capitol.
“This is the law in the state of Wisconsin at the moment and this is something that is going to be useful in everybody’s case,” says Jim Murray, an attorney representing five of the singers. “If it means helping each person individually slog out a case and get a good result, great. But it would be nice if the AG’s office decided that it’s just not worth hassling singers anymore.”
The decision by the state’s Fourth District Court of Appeals overturns a decision by Dane County Circuit Judge William Hanrahan that defendants in civil forfeiture cases can’t use the discovery process, which includes calling witnesses and seeking documents and other evidence in a case.
Murray says the appellate decision could impact the hundreds of cases stemming from the summer’s crackdown, which saw Capitol police arresting groups of singers almost every day.
The Attorney General's Office had little to say about the ruling.
"We are reviewing the decision and our options," spokeswoman Dana Brueck says.
Capitol Police Chief David Erwin launched the crackdown on the daily protests against Gov. Scott Walker's administration on July 24, insisting that participants obtain a permit for their noon-hour singalong in the Capitol rotunda if participants number more than 20. The protesters' refusal to go along led to more than 300 arrests.
The police actions unleashed a torrent of criticism of police tactics. Unlike earlier crackdowns, the police handcuffed the singers and led them to the Capitol basement to issue tickets. The arrests ended in October after a federal court settlement allowed the protesters to sing without reprisals if they simply notified the police of their intent to gather and sing.
While prosecutors dismissed scores of earlier cases, the charges stemming from the last crackdown are still pending.
The appellate ruling involved the case of Anica Bausch, who argued that she should be able argue her defense with witness accounts, documents, police videos and other evidence.
The appellate court agreed, brushing aside state arguments that state law doesn’t allow discovery in civil forfeiture cases and that allowing discovery would open the floodgates to prolonged litigation in minor civil forfeiture cases.
And the court pointed out that an Attorney General’s opinion in 1988 reached the same conclusion that the appellate court reached in the Bausch case.
"Despite the Attorney General opening that 'gate,' the state does not call our attention to any current 'flooding' problem,'” the court wrote.
Murray says the decision could force embarassing public disclosures about whether police followed their own rules in making the arrests or engaged in selectively targeting specific singers. He says the ruling also could result in longer court proceedings, but could also prompt prosecutors with the Attorney General’s Office to drop cases altogether.
“I think we’re in an enviable position," he says. "I hope and expect that we’ll win most or all of these cases. But even if we lose I think it makes the administration look so foolish for prosecuting hundreds of peaceful people for singing in the Capitol.”