2004AP175-W State ex rel. Oscar J. Williams v. The Honorable Patrick J. Fiedler

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“We agree that it was reasonable for the circuit judge to predict that Williams would not succeed in persuading a fact finder that Heise is guilty beyond a reasonable doubt. But we think the John Doe statute precludes this sort of assessment by the judge at the petition stage. Indeed, the circuit judge’s appellate brief aptly sums up the issue: At its core, this case requires [the court of appeals] to decide if Judge Fiedler properly determined that Williams failed to satisfy the objective, threshold requirement for commencing a John Doe proceeding, or whether Judge Fiedler improperly weighed Williams’ credibility or chose between conflicting facts and inferences.

“In Reimann, the supreme court explained that when judges assess ‘reason to believe,’ they ‘should not weigh the credibility of the complainant or choose between conflicting facts and inferences.’. Furthermore, Reimann teaches that the ‘reason to believe’ standard is somewhat lower than probable cause. According to Reimann, the ‘John Doe complaint … need not name a particular accused; nor need it set forth facts sufficient to show that a crime has probably been committed. The John Doe is, at its inception, not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime ….’….

“The story Williams tells in his petition is a plausible account of a battery. The judge’s negative assessment of Williams’ story is based on information in the police reports strongly indicating that Heise’s assertion of self-defense is more credible. In the words of the circuit judge’s brief, this is a ‘classic ‘he +said-he said’ case, with the police reports indicating that the evidence would show Heise was more worthy of belief than Williams. Thus, we can only conclude that the judge’s rejection of Williams’ petition was a result of weighing Williams’ credibility and choosing between conflicting facts and inferences, something prohibited by Reimann.

“We readily acknowledge that the John Doe statute, as construed in Reimann, is subject to abuse. This case is a good example. Our review of the police reports leads us, like the circuit judge, to believe that it is a virtual certainty that examining Williams under oath will be a waste of judicial resources and, in this case, prison and law enforcement resources, since it appears Williams is currently serving a prison term. But our belief is based on the same type of credibility assessment the circuit judge must have engaged in. The John Doe statute, as interpreted in Reimann, does not permit this assessment at this threshold stage in the process.”

Writ granted.

Recommended for publication in the official reports.

Dist IV, Dane County, Fiedler, J., Lundsten, J.

Attorneys:

For Appellant: Not given

For Respondent: Not given