Democratic DA office in John Doe like a chain smoker, unsealed records declare

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Three targets of a secret investigation into conservative organizations liken the Democrat-led Milwaukee County District Attorney’s office to a “chain-smoking” John Doe junkie and paint DAs in the multi-county probe as cowards, hiding behind a special prosecutor to avoid a public relations beating.

In newly unsealed documents obtained by Wisconsin Reporter, attorneys for the three petitioners don’t mince words about what they see as abridgement of state law and a blatant abuse of power in the year-and-a-half long investigation.

“Two of these petitioners had their homes searched before dawn. All three have seen their core First Amendment speech and association frozen for months,” states the reply filed on Dec. 27, 2013 in the state District IV Court of Appeals, based in Madison.

“The harm they have suffered is real; respondents rightly do not argue otherwise. None of it was legal, procedurally at least.”

The appeals court on Thursday issued its ruling rejecting the targets’ claims that previous John Doe Judge Barbara A. Kluka, who without explanation recused herself from the probe last fall, overstepped her power by:

• Consolidating John Doe investigations in five counties and judicial administrative districts into a single proceeding
• Appointing a special prosecutor without meeting the terms of state John Doe law
• Authorizing a special prosecutor who is “not accountable to the electors of any county to act in multiple counties.”
• Subjecting all those with access to documents in the John Doe proceedings to secrecy orders.

The court asserts there is no single John Doe investigation, but five separate John Doe proceedings launched by the district attorneys of five counties as the “result of a joint investigation into conduct that could potentially result in criminal charges being filed against different individuals or entities respectively residing or headquartered in each of those counties.”

“While it is certainly fair to characterize the investigation described above as a single coordinated effort, it does not follow that the individual John Doe proceedings have been consolidated,” the court wrote in its ruling.

That view would seem to contradict comments that special prosecutor Francis Schmitz made about the probe, according to the 270-plus pages of court documents the court agreed to unseal at the petitioners’ insistence.

By his own estimation, Schmitz oversees a “single, overall investigation,” according to the petitioners’ reply. The conservative targets described the probe as “one proceeding spanning a supercircuit of five counties.”

Schmitz himself voiced concerns about costs. “Five proceedings in five counties led by five prosecutors is wasteful and inefficient,” he said, according to the court documents.

The targets’ attorneys said appointing a special prosecutor who is not an elected DA to oversee a consolidated investigation defies state law.

“District attorneys wield great power. As one curb on that power, we elect district attorneys,” the petitioners’ reply states. “To ensure accountability, we do that regularly and in small locales. Every four years, most prosecutors most convince a majority of one county’s voters to retain him or her.”

Who holds Schmitz accountable, the conservative targets ask?

In rejecting the argument that Schmitz has no authority to act in multiple counties, the court points to the issuance of five supposedly separate appointment orders.

“Additionally, the fact that the special prosecutor appointed here is not an elected district attorney has no legal significance to the writ proceeding because any attorney licensed to practice in this state may serve as a special prosecutor, thus assuming all the powers of a district attorney,” the court notes.

The petitioners argue the state is paying for an unelected special prosecutor in five counties under circumstances the “Legislature never anticipated.”

It appears Schmitz is hauling in $130 per hour for his services, according to the unsealed documents.

The targets’ reply takes aim at the district attorneys who joined the multi-jurisdictional John Doe in Columbia, Dane, Dodge, Iowa and Milwaukee counties — three Democrats and two Republicans.

None of the five DAs claimed any conflict in handling the investigation, according to the petitioners’ attorneys, but the prosecutors asked that a special prosecutor lead the investigation, according to court documents.

“Instead, the DAs have sought only to conceal their involvement, and so to avoid criticism by working behind the special prosecutor,” the targets’ reply states.

Iowa County DA Larry Nelson offered Wisconsin Reporter a “respectful no comment” on the investigation or the court case. Dodge County District Attorney Kurt F. Klomberg said he couldn’t comment on whether such a John Doe investigation exists. The top prosecutors in Dane and Columbia counties didn’t return Wisconsin Reporter’s phone calls, nor did John Chisholm, Democrat DA of Milwaukee County, where the John Doe probe began.

“According to the original secrecy order, four (DA’s) remain agents of this John Doe proceeding … and the fifth, the Milwaukee County District Attorney, started and conducted this investigation in that county alone for almost one year,” the petitioners’ attorneys state.

The targets assert that bringing in Schmitz, apparently last summer, could provide “temporary cover” for the Milwaukee County DA. Chisholm and crew were engaged in another secret John Doe that went after former aides and associates of Gov. Scott Walker when the Republican was Milwaukee County executive.

This current investigation, sources say, is digging into allegations that conservative organizations illegally coordinated with Walker’s campaign during Wisconsin’s recall elections.

John Doe II, as it has been billed, includes ties to a target in the previous secret probe.

“(I)n the rough equivalent of secretive prosecutorial chain-smoking, the Milwaukee County DA office lit its next cigarette with the still-glowing butt of its last one,” the petitioner’s reply states.

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

READ THE UNSEALED DOCUMENTS

On Friday, Wisconsin Reporter and its national parent news organization, Watchdog.org, obtained all documents ordered unsealed in the controversial and secret John Doe investigation into multiple conservative targets. The state District IV Court of Appeals on Thursday rejected an appeal by three conservative targets to stop the investigation and to move the matter to the state Supreme Court. The appeals court did, however, agree to release some 270 pages of documents from the appeals court proceedings. Wisconsin Reporter and Watchdog offer the complete release of unsealed material so that our readers may have a better understanding of this matter.

Unsealed John Doe Court Records

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