Dec 9, 2013

Wisconsin GOP Wants New John Doe Probe, with No Cause or Evidence

Here is the false equivalency standard taken to new depths of absurdity.

Republicans feel that if Republican and rightwing action cause a John Doe probe to be launched, for the sake of political equality, a matching John Doe probe must be launched to investigate Democratic and progressive action.

Here's Mary Spicuzza in the Wisconsin State Journal (paid site) this morning: "There is no indication that Democratic candidates or liberal groups are also being investigated in the John Doe probe - which has incensed conservatives."

Has a district attorney and judge cause to believe a crime may have been committed?

That's the standard used to launch Wisconsin John Doe probes. And this standard is not probable cause.

"Unlike normal criminal proceedings, which can be initiated if there is probable cause to believe a person has violated the law, John Doe proceedings help law enforcement develop the evidence necessary to establish the very existence of probable cause," as Marcus J. Berghahn points out in his piece on Wisconsin John Doe probes.

"If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding," says Wisconsin's John Doe statute.

The GOP is apparently upset because a district attorney and judge have cause to have launched a new John Doe proceeding to determine if and by whom crime(s) have been committed in the 2011-12 Recall elections, among other matters.

The GOP line is for the sake of what, political equity, a new John Doe should be convened to look into whether crimes have been committed by Democratic candidates or liberal groups.

Wisconsin John Doe probes look into whether and by whom a crime has been committed, under Wisconsin law, when practical difficulties, conflicts of interests or protection of sensitive information by those testifying derail normal criminal investigations begun when law enforcement determines possible cause of criminality.

The Wisconsin John Doe statute was passed in part because of a concern to protect the innocent. Notes Berghahn:

But the proceedings are also designed to protect innocent citizens from the fallout of frivolous prosecutions.2 [See State ex rel. Reimann v. Cir. Ct., 214 Wis. 2d 605, 621, 571 N.W.2d 385, 390 (1997)]

As the Wisconsin Supreme Court stated in 1889: "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. 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. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion."3 [State ex rel. Long v. Keyes, 75 Wis. 288, 294-95, 44 N.W. 13, 15 (1889).]
Take for example, the John Doe probe of 2010-2013 that looked into Scott Walker's office when Walker was Milwaukee County Executive. That John Doe probe was convened because a criminal investigation was stonewalled by Scott Walker's office. (Bice. MJS) None of the six convicted Republicans have said they are innocent, and wrongfully convicted.

By GOP logic, the resulting six criminal convictions of Republicans—Walker aides, Walker appointees and a Walker campaign contributor—in that John Doe probe (2010-2013) should be matched by six criminal convictions of Democrats, facts and evidence not needed in the later cases.

John Doe probes are not mini-trials where only guilt beyond a reasonable doubt causes the probe's district attorney or special prosecutor to file criminal charges.

John Doe probes are investigations, and the standard to file criminal charges, at the prosecutor and overseeing judge's discretion, is whether at trial, the prosecutor's office believes it could convince a neutral jury or judge of guilt beyond a reasonable doubt.

The bizarre, new GOP wants citizens to be held accountable when other citizens commit crimes.

I think the GOP's new theory presents some Constitutional problems.

The judge in the new John Doe probe was Kenosha County Circuit Judge Barbara A. Kluka. Kluka has been replaced by former state Appeals Court Judge Gregory A. Peterson in November 2013.

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