By TODD RICHMOND
MADISON, Wis. (AP) — A new Wisconsin law limiting secret John Doe probes doesn’t mean prosecutors’ days of pursuing political corruption are over. But their remaining tools have limitations that may make it more difficult, especially in complex cases, legal experts say.
Prosecutors and investigators will have to turn to old-fashioned detective work or the state’s little-used grand jury procedure to build their cases, presenting problems for overworked district attorneys who may not have the time to dig through misconduct allegations outside of the John Doe process, they say.
“You don’t have a cop bringing in the case on a platter to you,” said Ray Dall’Osto, a Milwaukee defense attorney who described himself as leaning Democratic. “There’s going to be a tendency that these DAs are focused on immediate issues, like crimes of violence. The DAs are going to have to be more creative.”
Wisconsin is the only state with John Doe proceedings. They’re similar to grand jury proceedings. Prosecutors can present evidence in secret and compel witnesses to testify in secret before a judge.
Unlike a grand jury proceeding, where a prosecutor controls what he wants the jury to hear before the panel decides whether enough evidence exists to indict, John Does are more like depositions, with the judge ultimately deciding whether a crime has been committed.
Milwaukee County District Attorney John Chisholm, a Democrat, has used the John Doe process at least twice against Republican Gov. Scott Walker. One probe focused on whether his aides engaged in illegal campaigning when he was Milwaukee County executive. The other looked into whether Walker’s 2012 gubernatorial recall campaign illegally coordinated with outside conservative groups.
The first probe netted six convictions. The conservative-leaning state Supreme Court halted the other investigation this summer. The court found candidates can coordinate with outside groups on issue advocacy, political jargon for ads that laud or criticize a candidate’s position on an issue but don’t expressly ask voters to elect or defeat him, saying those communications amount to free speech.
The coordination probe left Republican lawmakers furious.
They branded the investigation a political witch hunt and introduced a bill that bars prosecutors from using John Does to look into political misconduct, saying they want to protect people from long-running, politically motivated investigations. Prosecutors could still use John Does to investigate a broad swath of major crimes, such as high-level drug dealing, homicides and racketeering, but political misconduct would be off-limits. Walker signed the bill into law Friday.
Democrats contend the move will strip prosecutors of a crucial tool they need to combat corruption and render politicians practically untouchable.
Despite the rhetoric, prosecutors have plenty of other methods to go after misconduct. They can pursue a case in the traditional way, with detectives coaxing witnesses to cooperate voluntarily, cross-checking their stories, gathering documents, executing search warrants and issuing subpoenas. They also could turn to grand juries.
But those tactics have drawbacks.
Most prosecutors are overwhelmed with street crime and don’t have the expertise to tackle complicated, wide-ranging political misconduct cases outside of a John Doe fact-finding probe, Dall’Osto, the defense attorney, said.
Without the John Doe’s secrecy, detectives’ work can become public much more easily. Prosecutors can ask a judge to seal a case record, but even approaching someone for an interview could prompt a witness to warn others to keep quiet or destroy evidence, said La Crosse County District Attorney Tim Gruenke.
“If you’re investigating the local town board for using public equipment to pave their driveway or something, you want to talk to the local contractors. They’ll tell everyone else the investigator was here and everyone will stop talking,” said Gruenke, a Democrat who has never been involved in a John Doe.
The grand jury process offers district attorneys secrecy and the ability to compel testimony, but that process is almost never used in Wisconsin, where district attorneys can charge people on their own.
State grand juries will be cumbersome — they require 17 people — and bringing one into court day after day requires space and is expensive, said University of Wisconsin-Madison law professor David Schultz.
Still, other states have been able to pursue political corruption cases without the John Doe process. Wisconsin prosecutors still have considerable powers and there are more statutes on the books that can be broken now than ever before, said Donald Downs, a UW-Madison political science professor and an expert on criminal law and politics.
As for the idea that a more public investigation could lead witnesses to coordinate their stories, Downs noted that witnesses who collude can always be charged with obstruction.
“I don’t mind making that process a little more subject to public scrutiny than it was,” Downs said. “It’s not going to be like, ‘oh, my God, it’s so much easier to commit political misconduct.'”