Republican lawmakers are considering changes to Wisconsin’s “John Doe” law after two lengthy investigations into Gov. Scott Walker’s campaign, and aides have raised questions about how long and how widely such secret probes should go and whether they violate civil rights.
State Rep. David Craig, R-Town of Vernon, is leading the effort to write a bill that would provide “additional layers of judicial review so we don’t have prosecutions run amok.” Craig said he worries about whether the process adequately protects citizens’ rights to due process, privacy and free speech and against unreasonable searches and seizures.
Conservatives alarmed about four years of investigation into the activities of Walker and his associates — including searches of targets’ homes and businesses — will likely be joined by defense attorneys concerned about the amount of power that prosecutors hold in John Doe investigations, said Tony Cotton, president-elect of the Wisconsin Association of Criminal Defense Lawyers.
The state’s unique law lays out an often-secretive process in which a prosecutor, supervised by a judge, investigates whether a crime has been committed and if so, by whom — thus the John Doe moniker. According to an 1889 decision by the Wisconsin Supreme Court, the goal of the law is to “protect citizens from arrest and imprisonment on frivolous and groundless suspicion.”
Prosecutors say John Does are a valuable mechanism for collecting evidence and compelling testimony when witnesses are reluctant or suspects uncertain. But Cotton said a John Doe is “an unchecked process that could be easily manipulated by any prosecutor — inadvertently or intentionally.”
A powerful tool
During a John Doe, a prosecutor can subpoena witnesses who are forced to testify or face contempt of court charges. If probable cause is found that a crime was committed, the prosecutor can then issue charges.
Cotton said as a criminal defense attorney, he fears that John Does give too much power to police and prosecutors. During a normal investigation, a police officer can interview people but they’re not required to answer questions unless criminal charges are filed and they are subpoenaed to testify, he said.
“It gives them (police and prosecutors) an enhanced level of power that they don’t have if they just send a cop out to do an interview,” said Cotton, whose practice is in Waukesha. “Prosecutors have the ability to compel somebody to physically come to court.”
In high-profile cases, the process often is shielded from the public. If no charges are filed, judges in such cases can order the process remain secret in perpetuity and that witnesses and targets are prohibited from discussing the proceedings. If charges are filed, a judge can order all evidence and testimony not directly related to the charges be sealed.
The idea behind secrecy is to protect the reputations of those under investigation not charged with a crime. But both investigations targeting Walker’s campaign and his associates have been the subject of leaks, despite court-ordered secrecy.
Craig said he does not have any specific changes in mind yet, but he wants more safeguards to ensure that targets’ identities are protected until and unless they’re charged. At the same time, Craig said lawmakers and the public should be able to find out how much such investigations cost.
“I think we are talking about a serious reform of the statute but maintaining it as a serious tool for district attorneys and law enforcement in general,” he said. “I think that there’s a way to protect people’s identities while it’s going on while also protecting prosecutors’ tools but also have a level of transparency.”
Probes drag on
Craig said he also is exploring whether there should be limits to the duration and scope of John Does. The investigation targeting Walker’s campaign and associates when he was the executive of Milwaukee County was launched by Democratic Milwaukee County District Attorney John Chisholm in 2010 and did not conclude until 2013.
That probe, prompted by a complaint from Walker’s then-chief of staff that veterans’ funds appeared to be missing, expanded into a wide-ranging investigation that ensared six aides and associates of Walker’s for crimes ranging from theft, misconduct in public office and illegal campaign contributions to contributing to the delinquency of a child. The governor was not charged.
A second probe, launched by Chisholm in 2012 and joined by four other district attorneys, including two Republicans, is ongoing. Its fate is in the hands of the Wisconsin Supreme Court after targets of the probe, including Walker, have filed court challenges to its legality.
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“The real abuse that I think Republicans see is this secretive process,” Cotton said. “It’s like an amoeba. It sort of morphs from one thing to another. ... People, groups, organizations can be put through years of investigation.”
But Cotton said he believes such concerns are misplaced, since other types of criminal investigations are secretive and can drag on or move in unexpected directions.
Cotton said a more cogent issue is raised by Waukesha attorney Christopher Wiesmueller in a November lawsuit.
The suit filed in U.S. District Court in Milwaukee against Reserve Judge Neal Nettesheim charges that Nettesheim’s role overseeing the first Walker-related John Doe was inconsistent with the U.S. Constitution’s requirement that search warrants only be authorized by a “detached and neutral magistrate.”
Nettesheim authorized a search of Wiesmueller’s law office after investigators discovered he had advised John Doe target Darlene Wink to destroy evidence that she was doing campaign work from Walker’s county office. Wiesmueller was cited by the Office of Lawyer Regulation in 2013 for his actions.
The state is seeking dismissal of Wiesmueller’s suit, arguing that Nettesheim has judicial immunity from such challenges.
Rock County District Attorney Brian O’Leary said John Does are a rarely used but valuable tool for prosecutors in “difficult” cases, such as investigations in which witnesses are reluctant to cooperate. O’Leary, president of the Wisconsin District Attorney’s Association, said he can’t comment specifically until he sees a detailed proposal.
“What I can tell you is that John Doe proceedings are not frequently used but provide greater protections than a grand jury,” he said. “The (proceeding) ... is actively overseen by a judge and is often secret, which provides protections to both witnesses and those being investigated.”
Famous, not-so-famous previous John Doe cases
The law, which dates back to before Wisconsin became a state in 1848, has been used in some high-profile cases in recent decades. Criminal charges and citations issued against five lawmakers and four legislative aides in 2002 in the so-called legislative caucus scandal stemmed from a John Doe investigation.
Laurie Bembenek, the former Milwaukee police officer convicted of murder in 1982, was offered a plea deal that got her released from prison 10 years later after a John Doe uncovered significant problems with the evidence used to convict her. Bembenek, who died in 2010, consistently denied she had anything to do with the shooting death of her then-husband’s ex-wife.
John Does also can be sought by citizens who claim a crime has been committed. In 2013, there were 185 John Doe cases filed in Wisconsin courts, most of them by inmates seeking investigations into prison conditions or other matters, according to electronic court records. All but a handful were quickly dismissed.
Milwaukee private investigative consultant Ira Robins helped launch the Bembenek John Doe. Robins also filed the lawsuit that prompted a 2009 Wisconsin Supreme Court decision and related changes in state law that have curtailed the ability of citizens to force officials to investigate potential wrongdoing, which Robins said has “rigged” the system against citizen complainants.
In 2007, Robins requested a John Doe into alleged misconduct by Taylor County District Attorney Karl Kelz. Robins’ request was handled by Iron County Circuit Judge Patrick Madden. The judge took testimony from Robins but declined to hear any other witnesses and denied the request.
Robins appealed the decision up to the high court, which ruled that the law cannot be interpreted to force judges to hear testimony from any witness produced by a complainant.
As a follow up, the Legislature in 2009 passed a law requiring that all requests first go to the local district attorney, who decides whether to pursue an investigation. Most decline.