Absolute immunity makes it tough to prosecute the prosecutors of John Doe

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The Democrat-led Milwaukee County District Attorney’s office can — and has — put innocent people in jail.

But they need not worry about punishment. In a legal system where prosecutorial immunity is as entrenched as habeas corpus, prosecutors are gods.

“Prosecutors know … they can commit misconduct with impunity,” Kathleen Ridolfi, director of the Northern California Innocence Project, told USA Today in 2010.

Firming up what had long been held as common practice, the U.S. Supreme Court in 1976 ruled that prosecutors cannot face civil lawsuits for prosecutorial abuses, no matter how severe.

Therein lies the uphill legal battle for those suing or contemplating lawsuits against the Milwaukee County District Attorney’s office on charges of misconduct and abuse of power.

Case in point: Conservative targets of a secret John Doe investigation who have filed a civil rights lawsuit against Milwaukee County DA John Chisholm, two of his assistant DAs, the probe’s special prosecutor and a shadowy investigator.

Eric O’Keefe and his Wisconsin Club for Growth assert the investigation, which has included pre-dawn raids at the homes of conservatives and the seizure of property, is nothing more than political retaliation that has stifled the plaintiffs First and 14th Amendment rights. The presiding judge in the probe, which acts much like a grand jury but without the benefit of a jury of peers, has quashed several subpoenas sought by prosecutors, saying they failed to show probable cause.

“This secret investigation and gag order on conservative activists is intended to stop their political successes in Wisconsin,” O’Keefe said in a statement last month. “The state cannot be allowed to silence political speech it does not like.”

But perhaps it can. Absolute prosecutorial immunity, critics contend, is the most inculcated abuse of government power. It is structured on arguably noble reasons — to protect the public, i.e. taxpayers, from being inundated with endless claims against prosecutors by aggrieved defendants.

As the U.S. Supreme Court stated, immunity protects against “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”

But what happens when claims of abuse are true?

The power of prosecutorial immunity has all but stopped Kelly Rindfleisch from filing a lawsuit over what she contends was the prosecution’s overly broad search and violation of her constitutional rights. Rindfleisch, who worked as a former aide to Gov. Scott Walker when he was Milwaukee County executive, was convicted in 2012 on a felony for doing campaign work on government time for Republican Lt. Gov. candidate Brett Davis. Some media outlets have erroneously reported that Rindfleisch had campaigned for Walker.

Rindfleisch was one of six people found guilty in that meandering John Doe probe, also launched by the Milwaukee County DA. Spanning nearly three years, four of the six people convicted had nothing to do with the original intent of the secret investigation, which involved reports of theft from a Milwaukee County veterans fund – concerns brought to the DA by Walker and his staff.

Rindfleisch has appealed that conviction but probably won’t sue, according to her attorney Franklyn Gimbel.

“I doubt it. Government lawyers have immunity,” Gimbel told Wisconsin Reporter. “We’re hopeful that we will get some favorable consideration of our appeal.”

Former Milwaukee County Supervisor Johnny Thomas faces the same hurdle in fighting the Milwaukee district attorney.

It took a Milwaukee County jury less than 90 minutes to acquit Thomas of bribery and misconduct in office — charges brought by Milwaukee prosecutors with “tunnel vision,” according to Thomas’ attorney, Craig Mastantuono.

“It was not just a thin case. It was an act created by the government,” Mastantuono told the Milwaukee Journal Sentinel following the August 2012 verdict. “It was investigated poorly, and the DA’s office had no evidence of a crime.”

Conservative talk show host Charlie Sykes called the Thomas case “one of the most spectacularly botched investigations of a public official in memory” and a clear case of “prosecutorial over-reach.”

But Thomas, a Democrat who seemed on the fast track to becoming Milwaukee comptroller, saw his rising star in politics plummet amid the DA’s charges of misconduct in office. He has yet to file a lawsuit in pursuit of reclaiming his reputation. Immunity certainly stands in the way.

“The answer to the question is, no, we haven’t filed anything,” Mastantuono told Wisconsin Reporter. “We’ve reviewed our options and continue to do so. That’s what I’m authorized to say. We haven’t sought relief.”

Christopher Brekken is suing Milwaukee County Assistant DA Bruce Landgraf, seeking unspecified damages for false imprisonment and abuse of process. Brekken, a Rice Lake Harley Davidson dealer, spent the better part of a day in jail after refusing to turn over charge card information of a customer Landgraf was going after in the previous John Doe probe. Under state law, Brekken could have gone to jail for divulging the consumer information, and faced big credit-card industry fines.

Landgraf, in a previous interview with Wisconsin Reporter, was unapologetic about jailing Brekken.

“What difference does it make?” Landgraf shrugged. “We ultimately got the information and the details we needed.”

“I’ve been practicing law for 34 years … and this is just as egregious an abuse of prosecutorial power as I’ve ever seen,” said Michael Schwartz, Brekken’s Minnesota-based attorney.

But the odds may be long for the retailer thanks to the power of immunity.

In 2011, the U.S. Supreme Court in a narrow 5-4 decision sided again with prosecutors, in arguably one of the more egregious cases of prosecutorial misconduct – sins of omission that nearly cost an innocent man his life.

The court overturned a jury verdict that had awarded $14 million to John Thompson, who had sued then-New Orleans DA Harry Connick Sr. (Yes, he is the father of musician and “American Idol” judge Harry Connick Jr.). Thompson served 14 years on death row for a murder he did not commit, and was saved nearly in the 11th hour after a private investigator found prosecutors hid a blood test that would have proved Thompson’s innocence.

“I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail,” Thompson wrote in an op-ed published shortly after the Supreme Court’s decision.

Prosecutors, no matter how abusive, generally have benefited from the “harmless error” standard upheld by courts. A defendant not only must prove prosecutorial misconduct, but “must also show that the misconduct substantially prejudiced the outcome of his or her trial,” according to an examination of Connick v. Thompson published by the Yale Law Journal.

“Courts can therefore avoid making a finding of misconduct altogether by finding that the alleged error, even if proven, was harmless,” the analysis states.

Individual prosecutors exercise almost unlimited discretion over whom to prosecute and which offenses to charge, according to the Law Review.

“The lack of any external oversight of prosecutors’ offices creates an environment in which misconduct can go undetected and undeterred,” the paper states.

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