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Editorial: The cost of justice

By: WISCONSIN LAW JOURNAL STAFF//September 17, 2012//

Editorial: The cost of justice

By: WISCONSIN LAW JOURNAL STAFF//September 17, 2012//

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Although it appears Wisconsin Supreme Court Justice David Prosser is about to win the biggest legal battle of his career, he should be worried, even embarrassed, about the cost.

On June 13, 2011, Prosser put his hands around the neck of fellow Justice Ann Walsh Bradley. Two months later, Sauk County District Attorney Patricia Barrett said she reviewed investigators’ reports and decided there was no basis to file charges against Prosser.

On March 16 this year, the state’s Judicial Commission filed a formal complaint against Prosser, charging him with three counts of judicial misconduct for the incident that was witnessed by all but one of the five other justices.

Prosser even re-purposed his campaign finance account as a defense fund, which the Government Accountability Board approved. The defense fund could give Prosser a way to pay his legal bills without having to spend a penny of his own cash. But his campaign account has a debt of about $229,000 from the recount election last year.

Chief Justice Shirley Abrahamson has the authority to send the case to a panel of three appeals court judges. The panel could rule on whether the case should go to the Wisconsin Supreme Court, the ultimate decision maker on judicial discipline.

Since the commission filed its complaint, Prosser, who has said he put his hands around Bradley’s neck to defend himself, has rarely shut up.

He has howled that the Judicial Commission is out to smear him for siding with the majority in upholding Republican Gov. Scott Walker’s law curtailing collective bargaining. He has demanded the commission make its findings public. He has publicly pressured his colleagues to recuse themselves from the case.

When the Judicial Commission drew up the process for discipline, it surely never envisioned that one Supreme Court justice would be accused of attacking another. But even if the commission had envisioned it, how could it have known the witnesses would be the other justices?

There are but seven justices. One is the accused, one is the alleged victim, four are witnesses to the act. That leaves one uninvolved in the case, N. Patrick Crooks, and even the poorest math student can see that he does not constitute a quorum.

So, Prosser almost certainly will walk. Even the poorest law student can see that witnesses to an alleged violation cannot serve on the jury deciding the accused’s fate.

In winning, Prosser loses. He never will have the opportunity to prove what he has insisted is true, that he acted properly.

It is as if, on June 13, 2011, he put his hands around his own neck, and there they will remain forever.

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