Biggest secret in John Doe may be just how judges and special prosecutors are selected

M.D. Kittle
|
Jan 10, 2014 4:06 PM
Biggest secret in John Doe may be just how judges and special prosecutors are selected

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – In the nearly two years since the Democrat-led Milwaukee County District Attorney’s office launched its second secret “John Doe” investigation into Republican and other political opponents, legal observers say they still don’t know exactly how such probes work.

Though gagged by court order, several sources have told Wisconsin Reporter the manifold legal attack on nonprofit political organizations has included dramatic pre-dawn raids on homes and offices; confiscated equipment and files; and demands for private phone, email and other records.

While some conservatives have spoken out, much of the investigation remains hidden from public scrutiny. But perhaps one of the biggest secrets is just how presiding judges and special prosecutors are selected to run and referee the John Doe probes.

JOHN DOE: In the nearly two years since the Democrat-led Milwaukee County District Attorney’s office launched its second secret “John Doe” investigation, legal observers say they still don’t know exactly how such probes work.

In this second John Doe investigation – the Wall Street Journal Editorial Board calls it the “Wisconsin Political Speech Raid” – we know Milwaukee DA John Chisholm tapped Francis D. Schmitz to serve as special prosecutor. But the process of choosing Schmitz, whose resume suggests a specialty in counterterrorism, remains unclear.

Ditto for the choice of a judge to oversee the secret proceedings.

Retired Kenosha County Circuit Judge Barbara A. Kluka was the presiding judge until she suddenly recused herself in late October, as Wisconsin Reporter reported. She has yet to explain why.

Nor can experts say why Kluka was replaced by former state appeals Court Judge Gregory A. Peterson. Unless he too resigns, Peterson will oversee a multi-county John Doe investigation that has subpoenaed more than 100 conservative and free-market activists in pursuit of alleged illegal campaign coordination during Wisconsin’s recall elections, sources have told Wisconsin Reporter.

The process is foggy to some of the brightest legal minds in Wisconsin.

Janine Geske, a distinguished professor of law in Marquette University Law School and former state Supreme Court justice, couldn’t say for certain how the selection process works. Nor did she know how special prosecutors are chosen for the investigations.

“That’s a law-exam question,” Geske said, stumped.

Reserve judges like Kluka are assigned by the Wisconsin Court System’s Director of State Courts Office. But Patrick Brummond, district court administrator of the Seventh Judicial District, couldn’t specifically say how presiding judges are selected in multi-county John Doe investigations.

In Milwaukee County, the chief judge assigns most of the judges, including those selected to preside over John Doe probes.

“I can only speak for what I do, but I try to make it as random as possible,” Chief Judge Jeffrey A. Kremers told Wisconsin Reporter in the weeks following public disclosure of the John Doe investigation.

When sitting judges cannot serve in the often time-intensive proceeding, a reserve judge is brought in. The reserve pool typically is diminished due to the winter schedules of snowbird retired judges, availability, degree of expertise or possible conflicts, Kremers said.

“It could come down to one person available to me in this part of the state,” the chief judge said. Kremers can request a judge outside of Milwaukee County, but tapping outside judges adds to the costs of the proceeding, which, of course, are borne by taxpayers.

Kremers said multi-county John Doe probes are extremely rare, counting no more than two such investigations in his five-year-plus tenure as chief judge. But in those cases, “Somebody’s got to take the lead,” he said, noting that he could not speak to reports of the secret investigation into conservative groups.

Kremers himself, Peterson and Schmitz are listed as respondents in a lawsuit filed by three unnamed petitioners — targets of the John Doe investigation, sources say. The petitioners had asked the state Appeals Court in Madison to shut down the investigation, arguing in part that there is no power granted under Wisconsin law to assign a single reserve judge for the multi-county John Doe. They make the same argument concerning Schmitz, the special prosecutor.

The Fourth District Court of Appeals, arguably the most liberal court in the state, denied the petitioner’s request. But it did order the judges and the special prosecutor to respond to several questions brought by the unidentified targets.

Kremers could not speak to the John Doe case when asked about it in November.

“Given the context of (Wisconsin Reporter’s) question and the timing, meaning the fact that you are wanting to know about this John Doe that you believe is a multi-county one … I cannot answer without disclosing something I don’t have the authority or power to disclose,” the chief judge said.

Kremers said he was speaking only from personal experience, but acknowledged “there’s no handbook” to instruct chief judges how to “handle these things.”

Perhaps there should be.

The power of Doe

John Doe judges are invested with awesome powers in determining the direction and scope of the investigations – including whether they are conducted in secret. Witnesses and potential targets of the probes have dramatically reduced rights.

“Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge,” according to Wisconsin law on John Doe proceedings.

Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation, according to court cases upholding the statute.

John Doe law in the state has come a long way since its first use in Wisconsin’s territorial days.

“When (the John Doe) statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so,” the Wisconsin Supreme Court said in 1989. “This was found to be a very unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them.”

The law was created to “protect citizens from arrest and imprisonment on frivolous and groundless suspicion.”

But critics say the investigations led by the Milwaukee County DA’s office, including a nearly three-year probe into Gov. Scott Walker’s former aides and associates when he was Milwaukee County executive, are nothing more than partisan witch hunts.

Milwaukee County Sheriff David A. Clarke has said the John Does have been “weaponized” for political gain.

Like a grand jury, John Doe investigations give prosecutors subpoena and search powers, as well as the ability to call oath-bound witnesses to testify. And they may be conducted in secret. The investigation draws its name from the unnamed people involved, and is intended to be an independent, investigative tool to determine whether a crime has been committed — and if so, by whom.

With so much power in the hands of law enforcement and a presiding judge, is there the potential for abuse?

The short answer, said Waukesha County District Attorney Brad Schimel, is yes.

Schimel, a Republican running for Wisconsin attorney general, told Wisconsin Reporter that the secret investigations are designed to protect innocent people from unfounded accusations.

But he believes there is room for abuse.

“Any time there is power vested in government officials, from a police officer working street patrol all the way up to the D.A. to judges, there is potential for abuse,” said Schimel, noting he has not been approached to be involved in the latest John Doe. “That’s not the way it’s supposed to work. Everyone is supposed to act ethically, they’re supposed to base decisions on things that have a legal basis.”

Contact M.D. Kittle at mkittle@watchdog.org

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