Wisconsin's two largest newspapers, the AP, and the Gannett Co dailies are misreporting a major element of Wisconsin's biggest political-criminal justice story—The John Doe Recall probe investigating coordination among Scott Walker, the Walker campaign and outside groups that flooded the Wisconsin airwaves with Express Advocacy ads during the 2011-12 Recall Elections
Misreporting a major fact of the Wisconsin John Doe probe has led many Wisconsin readers to the perception that the bipartisan law enforcement officials conducting the John Doe probe are just
playing politics, when the opposite is true under the rigorous and reformist John Doe statute that
protects the innocent when looking into the possibility of criminal activity.
The journalistic mistake is repeating the fallacious and misleading line from the Walker campaign that Scott Walker is not a "target" of the John Doe law enforcement investigation carried out under the authority of Wisconsin Constitutional officers [district attorneys] and the
Wisconsin John Doe statute.
Cody, our neighbor's dog who lives down the street is not a John Doe target; Packers coach Mike McCarthy is not a target; and neither is Scott Walker nor anyone else.
That's because the practice, statutory rationale and rules governing Wisconsin's John Doe's statute do not authorize designating 'targets' during the course of Wisconsin John Doe probes.
Federal grand juries in Wisconsin (and other states) do designate and
notify targets as "putative defendants," state grand juries in other states designate targets.
In Wisconsin John Doe probes do not designate targets.
The John Doe statute authorizes a law enforcement investigation conducted with the compulsory authority of a quasi-judicial hearing to look into if and by whom crimes have been committed, precisely to determine
whether someone should become a
target of a criminal complaint on the basis of the facts and testimony gathered in the probe.
In fact, the Wisconsin Supreme Court has specifically recognized that the John Doe statute
does not even "require that a witness be advised as to the nature of the proceeding," and does not require that the gathering of evidence and testimony reaches a point when someone must to be advised he or she becomes an effective
target of the John Doe investigation, likely to be served a criminal complaint. (
Ryan v. Wisconsin, (79 Wis.2d 83 (1977)).
This ruling has stood for 37 years without challenge because it is uncontroversial
Scott Walker's repeated
I'm have not been told I'm a target statements are misleading and dishonest.
The
Journal-Sentinel editorial this weekend advocating that the John Doe probe continue, notes Scott Walker has repeatedly asserted "that prosecutors have said he is not a target of their investigation."
This is not credible.
Walker won't be told he is a target until and unless he is served with a criminal complaint (likely just before).
In the middle of the for-now-halted John Doe probe Scott Walker surely was not told the status of the secret probe in a misuse of the term "target," while released
documents of the John Doe officials reveal their theory that Walker appears to be at the center of a "
criminal scheme."
John Doe probes are not grand juries, and they are not mini-trials requiring a reporting of the status of the probe or the disclosure of evidence that could be exculpatory in a hypothetical future trial, the
Brady Rule; this imperative exists after the charging of a criminal defendant.
Alerting someone he or she is suspected of illegal activity in a John Doe probe is like law enforcement alerting a criminal suspect that law enforcement has accumulated a mountain of evidence that the suspect is running guns and manufacturing crystal meth, so heads up guys.
Target is a precise legal term used in federal grand jury proceedings, but the Wisconsin press has generally used the term
target interchangeably in reporting on the current John Doe Recall probe as though the investigation is a grand jury proceeding.
Federal court opinions on the John Doe probe have used the term "target" and "subject," but by no means are the opinions intended to equate the use of
target in grand jury proceedings with
subjects and subpoenaed witnesses producing testimony and being investigated in the Wisconsin John Doe Recall election probe.
John Doe probes are begun when there is reasonable suspicion to believe a major crime has been committed, and conflict(s) of interests or practical difficulties
—such as stonewalling in the first Walker administration John Doe probe (May 2010 - March 2013) resulting in criminal convictions against three former aides, one appointee and one campaign contributor to/of then County Executive Scott Walker—make a John Doe proceeding necessary as determined by a district attorney, judge; and in some cases as requested and initiated by Wisconsin citizens, a Wisconsin law enforcement jurist confirms.
If someone in a John Doe probe is charged like
Tim Russell and Kevin D. Kavanaugh—Scott Walker's longtime political aides who were appointed by Walker to a military veterans' non-profit groups and proceeded to embezzle $10,000s donated and intended for veterans and their families (both were convicted in 2012)
—the criminal charging then and only then causes someone to become a "target," at the discretion of the district attorney and judge overseeing the probe.
A quick phone call to a law enforcement jurist or Wisconsin criminal defense jurist will confirm these facts about
targets and what John Doe officials reveal to the people to whom they speak.
In the meantime, the
Wisconsin State Journal,
Milwaukee Journal-Sentinel and most of the Wisconsin press are consistently misrepresenting this major element of Wisconsin's biggest criminal justice-political story right up to the last critical months before the November gubernatorial election.
Tuesday afternoon, September 9, the
U.S. Court of Appeals for the Seventh Circuit will hear oral arguments slated to begin at 2:30 on several cases related to the John Doe 'Recall' probe including whether numerous documents should be released, and whether
U.S. District Judge Rudolph Randa erred when Randa halted the probe on May 6 this year in an incredible and
spectacularly corrupt ruling attempting to salvage Walker's political career in a ruling that stains the federal judiciary in Wisconsin.
Walker has been shown to be at the center of a
criminal scheme in the documents already released. (Marley, Bice and Glauber,
Milwaukee Journal-Sentinel)
Walker's fear, and Randa's fear is that if the probe were allowed to be continued (and no jurist to whom I have spoken can cite a Wisconsin John Doe proceeding that has been halted in this manner as Randa did in May), Walker and several others would be served with a criminal complaint,
then Scott Walker and likely others would become targets.
It has already been established Scott Walker solicited money on behalf of outside groups, and coordinated with outside groups to benefit the 2012 recall campaigns of Republican state senate candidates. (Bottari,
Center for Media and Democracy)
Reporting and repeating Scott Walker's line that Walker (and others) are not John Doe targets is an abdication of the commitment to reporting facts that underlie the best of American journalism, and effectively functions as a cover-up and propaganda for Walker and his allies.
This error is exacerbated in the context of Walker's allies' repeated assertion that coordination and solicitation among Walker, Walker's campaign and Walker's allies is not a crime, calling Wisconsin campaign finance regime, "
zombie law," though numerous people have already been convicted and sentenced for the same crimes—laundering campaign contributions, misconduct in public office and filing false reports with the state Elections Board (now Wisconsin Government Accountability Board)—that Walker and others appear to have committed.
This is a grave matter for Wisconsin journalism assuming one takes matters such as the formal structures of Wisconsin democracy and the rule of law seriously; the issue is no less than the question: Is Scott Walker above the law?
When there is this much at stake, Wisconsin journalism has to get the story right.
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