Changes to John Doe law could affect crime victims

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While much of the attention on changes to a Wisconsin law that allows secret investigations have focused on how the bill excludes, among other crimes, misconduct in public office, they also could have an effect on a less obvious player in the proceedings — crime victims.

Wisconsin is the only state that conducts John Doe proceedings, which is the state’s preferred alternative to grand-jury proceedings that are standard in other states. Michigan has a similar proceeding, the one-man grand jury, though it differs in some respects and is rarely used.

In October, the Legislature and Gov. Scott Walker approved several changes to the John Doe law, including preventing the proceedings from lasting more than six months unless a panel of chief judges votes that there is good cause to extend the investigation. It also limits the crimes prosecutors can use a John Doe to investigate. On Oct. 23, Walker signed a bill doing away with the probes into political misconduct, including bribes, theft and campaign finance violations. They could still be used for violent felonies and some drug crimes.

Two high-profile John Doe investigations in part inspired the Republican-led effort to change the law. Scott Walker’s campaigns for governor and Milwaukee county executive recently received national media attention. This summer, the Wisconsin Supreme Court shut down one of the probes, saying it was unconstitutional.

Republicans say the changes will prevent unconstitutional investigations that give too much power to prosecutors and expand protections for those not yet charged with a crime. Prosecutors, they said, have other ways to investigate political crimes.

Democrats argued that the proposal would protect corrupt politicians, hobble prosecutors and saddle counties with the cost of grand jury proceedings, which require a group of jurors to be convened.

Ben Kempinen, a University of Wisconsin law professor, said the changes, in limiting the types of crimes a John Doe proceeding can investigate to certain felonies, would limit the ability a crime victim has under the Crime Victim Bill of Rights, to initiate a John Doe proceeding.

The bill of rights lets crime victims to either bring a complaint to a district attorney or initiate a John Doe proceeding seeking a judge to file charges. The history of the John Doe proceeding shows it was not created for protecting crime victims, Kempinen said, but crime victims have used it and courts have recognized that use as appropriate.

For example, in the 1980s, an exotic dancer successfully initiated a John Doe investigation in Milwaukee County, alleging that she had been sexually assaulted by two members of the Green Bay Packers in a Milwaukee nightclub after the district attorney at the time declined to bring charges. Around the same time, another victim in Waukesha County initiated a John Doe after the district attorney there refused to bring charges. The victim alleged she had been sexually assaulted by someone so well known in the Waukesha County legal community that a judge from Ozaukee County was appointed to review the petition.

More specifically, said Kempinen, under the changes, a victim would not be able to initiate a John Doe proceeding for misdemeanor battery and disorderly conduct, which are the two most common charges in domestic violence cases.

However, prosecutors rarely see victims initiate John Doe probes and rarely use the proceeding to charge domestic violence crimes.

The categories of crimes allowed under the bill are broad enough to cover the type of domestic violence that would require a John Doe investigation, said Anne Schwartz, spokeswoman for the Wisconsin Department of Justice. But in general, she said, prosecutors do not typically use John Does to investigate domestic abuse. Rather, they are used for murder cold cases, said Schwartz.

St. Croix County DA Eric Johnson said he has participated in many John Doe probes, using them primarily to investigate drug crimes and misconduct in public office. Joe DeCecco, who has been DA in Sheboygan County for more than a decade, said he has only initiated a John Doe once in his career in 2006, and it involved misconduct in public office.

Johnson, who has been a DA for more than 30 years, said he has seen cases of victims initiating John Doe proceedings, but the judge usually denies the petitions. Johnson said it often happens when a victim is not happy with a DA’s decision not to charge.

While there is no history of a domestic violence victim initiating a John Doe proceeding, said Tony Gibart, who lobbies for the domestic abuse victim centers around the state, the changes emphasize how prosecutors and law enforcement are domestic crime victims’ key link to the criminal justice system and how they need to be thoughtful of that fact when they review complaints and make charging decisions.

Wisconsin Law Journal staff writer Erika Strebel is a student in Professor Ben Kempinen’s Substantive Criminal Law class at the University of Wisconsin Law School.