Mar 4, 2013

Questions Exist for DA and Presiding John Doe Judge on Using Wrong Standard of Proof

DA's policy on John Doe Probe
Update II: I think DA Chisholm and Judge Nettesheim should be moving ahead with charges against Scott Walker; and predictably the GOP-front group that laughably calls itself a news service, the "MacIver News Service," is attacking Chisholm for the costs of the John Doe probe, begun because of Scott Walker's stonewalling. Great, so release the records of the proceedings and to the extent possible give the GOP-front group, Maclver an accounting of the costs of the John Doe probe. What do ya say Maclver 'News Service,": Open up the John Doe records proceedings?

Update: The Wisconsin Benchbook reads in part RE John Doe Proceedings:

A: "Proceeding to determine whether crime committed and by whom."

D. "Must conduct self as neutral detached magistrate in determining probable cause [47.47.]

In the Milwaukee District Attorney's press release last week announcing the closing of the John Doe probe into Scott Walker's tenure as Milwaukee County Executive, the DA's press release reads in part: "I am satisfied that all charges that are supported by proof beyond a reasonable doubt have now been brought and concluded," per the Milwaukee DA's policy.

What about possible charges that are supported by the standard of 'probable cause', referred to in both the Wisconsin John Doe statute and Wisconsin Benchbook.

Why did the John Doe probe (presided over by Judge Neal Nettesheim whom right-wingers predictably slurred) use the high threshold of "beyond a reasonable doubt" as the basis on whether to bring criminal charges, as stated by the Milwaukee DA.

A call on this matter made this morning to the Milwaukee DA's office has not yet been returned.

John Doe probes examine, investigate and determine if and by whom a crime has been committed, per Wisconsin statute

John Doe probes are not mini-trials; full evidential trials in which a finding of guilt beyond a reasonable doubt is reached. [Consider the cases Wisconsin v. Hooper, 101 Wis.2d 517, 544, 305 N.W.2d 110 (1981)) and Wisconsin v. Dunn, 121 Wis.2d at 396-97, 359 N.W.2d 151 (1984).]

The probe's purpose and charge determine whether there is sufficient evidence and facts establishing probable cause that charges against a defendant should go forward and a probability of guilt exists at trial.

The significance of using this threshold of 'beyond a reasonable doubt' is that there may well be a rat's nest of facts and evidence gathered that would establish probable cause that a crime has been committed, and charges would ensue in a different prosecutorial forum like a federal grand jury or other such criminal investigation.

So, what's the deal? Did the Milwaukee DA use a policy that is at odds with standards suggested by the preliminary examinations (hearings) discussed in the two Supreme Court cases referenced above?

It is noted in Hooper (a John Doe case) that "prosecuting attorneys possess broad discretion in determining whether or not to charge a defendant and thereby initiate criminal proceedings," and that DAs enjoy "quasi-judicial prosecutorial discretion."

Still, since when are John Doe probes the forum in which a DA and judge choose among conflicting gathered facts, evidence or inferences, and in which the DA and judge weigh evidence and make a finding of guilt or innocence? I thought that criminal trials do that.

The John Doe probe is the start of the trial process; not the judge and jury and concluding forum. So, why the heightened bar? Consider Dunn:

The parties in this case disagree as to what quantum of evidence is necessary at a preliminary hearing to establish to a reasonable probability that the defendant committed a felony. The court of appeals held that the probable cause requirement is satisfied if any reasonable inference supports a conclusion that the defendant probably committed a felony even though there are equally strong inferences to the contrary. In such instance, the state's evidence would not be required to reach the level that guilt is more likely than not.

Justice Louis J. Ceci. (STATE of Wisconsin, Plaintiff-Appellant, v.Ronald J. DUNN, Defendant-Respondent-Petitioner)

Now, I always believed that the DA's office criminally charged when they thought they had probable cause, and went to trial when they thought they can win cases involving alleged great public harm. They go to court to win; so does the accused's defense.

A John Doe probe finds you likely to have committed a crime, then you are sentenced? No, you have a right to a trial, and a right to a presumption of innocence.

Consider grand juries in Wisconsin; they use the low standard of "probable cause" to determine whether to bring criminal charges against a defendant, thus the cliche, grand juries can indict ham sandwiches.

Different standards of proof are used in our criminal justice system processes; for example:

  • Beyond a reasonable doubt
  • Clear and convincing proof
  • Preponderance of evidence
  • Reasonable doubt
  • Reasonable suspicion
A John Doe probe is an extraordinary, secret investigation begun and conducted under Wisconsin statute 968.26.

The factor(s) causing a John Doe probe can range from conflict of interest to practical difficulties or in the probe into Scott Walker's office: Stonewalling by Scott Walker's office, (presided as mentioned over by Judge Neal Nettesheim).

Nothing in the Wisconsin statute 968.26 on John Doe probes mandates this very high legal standard, 'beyond a reasonable doubt', in determining if there is sufficiently credible evidence to warrant a prosecution.

The standard of 'beyond a reasonable doubt' typically is the standard that criminal juries use to determine guilt and innocence in trials. 

The Wisconsin BenchBook, a judicial guide, confirms no such high standard of proof as the threshold John Doe jurists must use to bring charges.

Let's take a look at a lay definition of 'beyond a reasonable doubt':  "The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty," reads one Legal Dictionary.

This is not the standard that prosecutors, or grand juries, typically use as the determining basis of whether to bring criminal charges.

Again why did the Milwaukee DA's office use this high standard, 'beyond a reasonable doubt' as the determining bar of whether the office should bring charges against Scott Walker?

I ask because if the lower standard of probable cause were used, Wisconsin likely would have a sitting governor facing multiple criminal charges.

For now, most of the John Doe's record of proceedings remain secret, but may be released at Judge Nettesheim's discretion, perhaps in a different forum.

The Wisconsin Benchbook reads: G. "John Doe Judge rendering judicial decision must create record for possible review [47.65]."

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