Tracking Doe: Investigative proceedings, though one of a kind, have deep historical roots

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Critics of the John Doe investigations that have dogged Gov. Scott Walker since he took office in 2011 often make much of the fact that Wisconsin is the only state to have a law allowing the frequently secret probes.

Yet, the John Doe procedures spelled out in Wisconsin statutes are not quite as unusual as some would suggest. They have their roots in English common law and perform a function very similar to that of grand juries in many other states. What is truly unique about them, as is the case with many oddities tucked away in statute books, can largely be traced in history.

The state’s Legislative Reference Bureau — an agency that tracks changes to state statutes over time — notes that the primary justifications for Wisconsin’s John Doe proceedings can be found in common law, which has relied on grand juries for centuries as a way to check prosecutors’ otherwise nearly unfettered power to issue criminal charges and warrants for arrest. To prevent citizens from being pursued in court for malicious or dishonest reasons, cases brought before a grand jury are not allowed to proceed without first being reviewed and approved by a group of the suspect’s peers.

The idea behind grand juries, said Ed Fallone, a law professor at Marquette University, is to force prosecutors to furnish sufficient evidence of wrongdoing before putting a suspect through the hardship of a criminal trial. This solicitude for individual rights, he said, existed well before Wisconsin became a state.

“In the colonial era, there was a lot of concern about the royal governors bringing criminal judgments against colonials,” Fallone said. “There were instances where they would refuse to indict.”

A desire to provide due-process protections was among the things brought with those who later moved into the large expanse of land that would only become Wisconsin decades after being made part of the Northwestern Territory in 1787. The trouble for the early settlers of the vast region was that there were too few of them to ensure they could always fill out a grand jury when the need arose.

Typically, grand juries required between nine and 25 people to hear evidence, sometimes for weeks on end. Fallone said it is difficult even today to find jurors who could commit so much of their time — a problem that would have been much worse when the state’s population was far smaller.

That early scarcity laid the foundations for the state’s John Doe law. Rather than a panel of peers, the state’s particular proceedings placed control over the early stages of a criminal case in the hands of a judge, who could act more or less alone.

This vesting of so much power in a single official is exactly what many critics of the state’s John Doe law find troubling. The results have been Senate Bill 43 and Assembly Bill 68, legislation that would curtail judges’ ability to keep John Doe proceedings secret.

If the bill were passed by the legislature and signed by Walker, judges could still impose gag orders on themselves and other judges, prosecutors, law-enforcement officers, interpreters and court reporters — but no longer witnesses. The change would bring the state’s John Doe law more into line with grand-jury proceedings, in which witnesses are not barred from talking publicly about their testimony.

Various Republican sponsors of SB 43 and AB 68 — including the main author, state Sen. Tom Tiffany, R-Hazelhurst — have acknowledged that the proposal stems in large part from a sense that the state’s John Doe proceedings have been misused in two fairly recent investigations led by the Milwaukee County District Attorney’s office. The first of those probes, which mainly looked at whether violations of election laws had occurred in Milwaukee County Executive’s office when Walker was in charge there, eventually led to the conviction of six of his former associates on criminal charges.

The second, investigating whether Walker’s campaign had illegally worked with outside conservative groups during the 2012 recall election, has stalled amid a series of court challenges. Prosecutors have said Walker himself is not a target of that probe.

Still, Republicans have described the investigations as being part of a witch hunt against the divisive governor, a charge that Milwaukee County DA John Chisholm vehemently denies. To prevent perceived political abuses, the sponsors of SB 43 and AB 68 would allow judges to order John Doe probes only in response to certain allegations, excluding misconduct in office and violations of campaign finance and ethics laws.

Temporary and reserve judges would be prohibited from initiating the proceedings. And full-time judges could no longer decide on their own that secrecy is warranted, but would instead have to be convinced by compelling evidence presented by a prosecutor.

Supporters of the legislation have argued that prosecutors and judges who think they have good reason to gather evidence and interview witnesses in secrecy could continue to do so by convening a grand jury. But grand juries have been used infrequently in Wisconsin, in part because they are perceived to entail more hassles than John Doe proceedings.

The reliance on a single judge is as much a product of history as anything else. It can be seen in the only other state to use a similar system — Michigan. Like Wisconsin, its neighbor to the east encompasses land that was once part of the Northwestern Territory.

Legislation providing for the government of the territory had granted citizens the right to a trial before their peers. Still, as was true in the land west of Lake Michigan, a relatively small population to the east made the ability to regularly assemble juries an unsure probability.

The result in Michigan was a series of proceedings that bear the name of a grand jury but are in fact carried out, as in Wisconsin, by a single judge. According to the Michigan Law Review, the one-man grand jury also differs from a regular grand jury in that the presiding judge, rather than delivering an indictment, offers a “presentment” of findings. The judge also has the power to punish uncooperative witnesses for contempt.

In Wisconsin, the legal roots of John Doe proceedings, according to Fallone, also reach into the territorial statutes of 1839. Those laws contained a provision allowing citizens to bypass law-enforcement officials and make criminal complaints directly to magistrates, who could then determine whether a warrant should be issued.

Besides sidestepping the need to assemble a full grand jury, the provision allowed for allegations to be made in secret. The idea was that victims might be reluctant to come forward, especially at a time when the general population did not number many police officers.

A settler, for instance, might suspect a neighbor of theft but stop short of making a formal accusation after calculating that a law-enforcement official could not arrive in time to prevent his barn from being burned down out of retaliation.

“There was a lot of concern about citizens making complaints publicly and being subject to retaliation,” Fallone said.

The same reasons for allowing secrecy in John Doe hearings exist today, said David Schultz, law professor at the University of Wisconsin Law School. Without a guarantee that information presented in court or in a deposition will remain confidential, witnesses who could offer up crucial evidence in a high-level corruption case might be reluctant to come forward for fear of antagonizing powerful figures.

“Sometimes people with information about potential criminal activity don’t want to cooperate with an investigation and don’t have to,” Schultz said. “It’s a way to convene a formal proceeding in which witnesses and physical evidence can be subpoenaed.”

On the other side, supporters say that gag orders help ensure possible suspects — many of them prominent public officials — do not see their reputations unduly tainted by baseless criminal charges. Secrecy can also prevent the news of an investigation from prompting suspects to flee or be tempted to destroy or tamper with evidence.

Schultz said it is very rare that the public ever learns that John Doe proceedings are taking place. What he finds unusual about the investigation into Walker’s 2012 recall campaign, he said, is that some of those possible targets, whom the secrecy is partially meant to protect, are the very ones who have taken to discuss the case in the news media.

Some of those same people — most notably Eric O’Keefe, president of the conservative-leaning Wisconsin Club for Growth — argue that the gag orders violate their free-speech rights. During the John Doe investigation into the Milwaukee County Executive office under Walker, almost no one involved spoke publicly about the proceedings. In the subsequent investigation, though, grievances have spilled out into a variety of forums, most notably in comments O’Keefe made to editorial writers at the Wall Street Journal.

Still, John Doe investigations have strong legal backing in Wisconsin. The proceedings were validated by the state Supreme Court in 1889 and formally spelled out in state statutes in 1949.

Schultz said the law has undergone only a few minor changes since then. Modifications were made in 1989, 1991 and 2009. These changes, however, were minor or technical in nature when compared with those proposed in the legislation lawmakers are now debating, he said.

Fallone said both John Doe and grand juries became popular in the Progressive Era during the late 1800s and early 1900s, a time when many public officials were intent on fighting cronyism in local government and political corruption.

Along with forgoing the need to assemble a jury, Fallone said, one benefit of the state’s John Doe law is that it puts legal experts in charge of the early stages of criminal cases. That can be advantageous, Fallone said, because judges are less liable to make mistakes when dealing with the requirements for issuing subpoenas and establishing probably cause.

“John Doe comes in, like a grand jury in many ways, and served the function of being a check,” Fallone said. “Instead of a jury of citizens, you have a judge who acts as check.”

“What’s interesting to me is that we’ve had this historical debate in the nation’s history where we’ve gone from loving grand juries to hating them … and back to loving them again,” said Fallone. “The attack on John Doe is part of the cyclical love-hate relationship with the role of the grand jury.” Follow @erikastrebel