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John Doe Case Analysis

By: dmc-admin//May 7, 2003//

John Doe Case Analysis

By: dmc-admin//May 7, 2003//

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It is axiomatic to say that a John Doe judge is not authorized to exercise all the powers of a court. In the wake of this decision, however, the question of what powers it can exercise is now more uncertain than before.

Justice Sykes noted that attorney argument is necessary to adjudicate adversarial motions that affect the substantial rights of targets or witnesses, such as compulsion orders, contempt, privilege claims, and immunity grants.

However, as the majority noted, it is clear from previous cases, such as State v. Washington, and State v. Doe, 78 Wis.2d 161, 254 N.W.2d 210 (1977), that John Doe judges have permitted argument from attorneys in the past, notwithstanding the rule against it, and the Supreme Court has reviewed such cases without disparagement.

What the majority ignored, however, is that, in State v. Doe, the parties expressly waived any irregularities in the proceedings. Doe, 78 Wis.2d at 164.

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Wisconsin Supreme Court

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Court can review John Doe judge

Furthermore, as Justice Sykes noted, in those cases involving argument by counsel, the John Doe judge ultimately did suspend the John Doe proceedings, to convene and act in the capacity of a circuit court judge. Presumably, that need no longer be done — not just when dealing with attorney disqualification, but with any of the above types of orders.

This is because the emergence of an issue that requires a John Doe judge to act outside that traditional capacity will likely also require the John Doe judge to hear argument in order to fairly conduct the proceedings.

In most, if not all, cases, if “substantial rights of targets or witnesses” are at stake — the touchstone for Justice Sykes that requires convening as a circuit court — then “procedural fairness” and “the ability of the John Doe judge to carry out his or her responsibilities with respect to the proper conduct of John Doe proceedings” — the touchstone for the majority that empowers the John Doe judge to perform judicial functions — will also be at stake.

— David Ziemer

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David Ziemer can be reached by email.

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