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John Doe Investigators Fear Filing Additional Charges Will Lead to Claims of Political Bias

Wisconsin DA, John Chisholm

An update from Daniel Bice at the Milwaukee Journal-Sentinel this morning suggests Milwaukee County District Attorney John Chisholm is unsure wether to file additional charges in the John Doe investigation before the recall election. Chisolm’s predecessors are on the record as skeptical because claims of political bias in this scenario are expected:

Several former prosecutors and judges suggested they would be extremely cautious if they were in Chisholm’s shoes.

In short, they said they would file any additional new charges soon, or wait until after June 6. A John Doe probe is a secret investigation that allows prosecutors to compel testimony and gather evidence.

Ex-Milwaukee County Circuit Judge John Franke, who had a celebrated career prosecuting organized-crime figures, said DAs face “no-win choices” when handling a criminal case involving a politician or his aides shortly before an election.

Franke would be inclined to sit on his hands until the votes are cast.

“One approach is to put blinders on and try to do whatever would have happened without the election. Another is to attempt to separate prosecution and politics by waiting until after the election, no matter who might be helped,” Franke said. ”I prefer the second choice, but either way, the prosecutor will be accused of political bias.”

The common man’s reaction this, of course, is “who cares?” The DA’s job is to pursue the case, regardless of the political landscape, and to charge the people who have broken the law. But it is understandable that it would be a tough choice if, in the end, everybody shares the common goal of seeing the offenders punished. It is easy to imagine a scenario in which media frenzy and distraction over false accusations of bias could interfere with the outcome of a court or judge ruling. This is America, after all.

Daniel Blinka, a Marquette University law professor and former prosecutor, said it would be impossible for Chisholm to keep the case from being politicized.

“Politics are integrally involved in this John Doe,” Blinka said. “They’re inevitably part of the case.”

Republican activists will be upset if Milwaukee prosecutors file complaints against additional Walker aides before June 5, arguing that the Democratic district attorney would be trying to influence the election.

But Democrats will be equally upset if charges wait until after the election, especially if Walker wins. Likewise, Republicans would accuse Chisholm of trying to use the courts to tar the governor coming out of the recall race.

Blinka, who worked on a number of John Doe cases, said the key is for Chisholm to build the strongest cases he can - or decide not to press additional charges. Blinka recommended that the prosecutor draw on the experience of veteran jurist Neal Nettesheim, the appeals court judge overseeing the John Doe case.

“It all comes back to the integrity of the process,” he said. “The legitimacy of the charges is paramount.”


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