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Biggest secret in John Doe may be just how judges and special prosecutors are selected

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Part 17 of 137 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – In the nearly two years since the Democrat-led Milwaukee County District Attorney’s office launched its second secret “John Doe” investigation into Republican and other political opponents, legal observers say they still don’t know exactly how such probes work.

Though gagged by court order, several sources have told Wisconsin Reporter the manifold legal attack on nonprofit political organizations has included dramatic pre-dawn raids on homes and offices; confiscated equipment and files; and demands for private phone, email and other records.

While some conservatives have spoken out, much of the investigation remains hidden from public scrutiny. But perhaps one of the biggest secrets is just how presiding judges and special prosecutors are selected to run and referee the John Doe probes.

JOHN DOE: In the nearly two years since the Democrat-led Milwaukee County District Attorney’s office launched its second secret “John Doe” investigation, legal observers say they still don’t know exactly how such probes work.

In this second John Doe investigation – the Wall Street Journal Editorial Board calls it the “Wisconsin Political Speech Raid” – we know Milwaukee DA John Chisholm tapped Francis D. Schmitz to serve as special prosecutor. But the process of choosing Schmitz, whose resume suggests a specialty in counterterrorism, remains unclear.

Ditto for the choice of a judge to oversee the secret proceedings.

Retired Kenosha County Circuit Judge Barbara A. Kluka was the presiding judge until she suddenly recused herself in late October, as Wisconsin Reporter reported. She has yet to explain why.

Nor can experts say why Kluka was replaced by former state appeals Court Judge Gregory A. Peterson. Unless he too resigns, Peterson will oversee a multi-county John Doe investigation that has subpoenaed more than 100 conservative and free-market activists in pursuit of alleged illegal campaign coordination during Wisconsin’s recall elections, sources have told Wisconsin Reporter.

The process is foggy to some of the brightest legal minds in Wisconsin.

Janine Geske, a distinguished professor of law in Marquette University Law School and former state Supreme Court justice, couldn’t say for certain how the selection process works. Nor did she know how special prosecutors are chosen for the investigations.

“That’s a law-exam question,” Geske said, stumped.

Reserve judges like Kluka are assigned by the Wisconsin Court System’s Director of State Courts Office. But Patrick Brummond, district court administrator of the Seventh Judicial District, couldn’t specifically say how presiding judges are selected in multi-county John Doe investigations.

In Milwaukee County, the chief judge assigns most of the judges, including those selected to preside over John Doe probes.

“I can only speak for what I do, but I try to make it as random as possible,” Chief Judge Jeffrey A. Kremers told Wisconsin Reporter in the weeks following public disclosure of the John Doe investigation.

When sitting judges cannot serve in the often time-intensive proceeding, a reserve judge is brought in. The reserve pool typically is diminished due to the winter schedules of snowbird retired judges, availability, degree of expertise or possible conflicts, Kremers said.

“It could come down to one person available to me in this part of the state,” the chief judge said. Kremers can request a judge outside of Milwaukee County, but tapping outside judges adds to the costs of the proceeding, which, of course, are borne by taxpayers.

Kremers said multi-county John Doe probes are extremely rare, counting no more than two such investigations in his five-year-plus tenure as chief judge. But in those cases, “Somebody’s got to take the lead,” he said, noting that he could not speak to reports of the secret investigation into conservative groups.

Kremers himself, Peterson and Schmitz are listed as respondents in a lawsuit filed by three unnamed petitioners — targets of the John Doe investigation, sources say. The petitioners had asked the state Appeals Court in Madison to shut down the investigation, arguing in part that there is no power granted under Wisconsin law to assign a single reserve judge for the multi-county John Doe. They make the same argument concerning Schmitz, the special prosecutor.

The Fourth District Court of Appeals, arguably the most liberal court in the state, denied the petitioner’s request. But it did order the judges and the special prosecutor to respond to several questions brought by the unidentified targets.

Kremers could not speak to the John Doe case when asked about it in November.

“Given the context of (Wisconsin Reporter’s) question and the timing, meaning the fact that you are wanting to know about this John Doe that you believe is a multi-county one … I cannot answer without disclosing something I don’t have the authority or power to disclose,” the chief judge said.

Kremers said he was speaking only from personal experience, but acknowledged “there’s no handbook” to instruct chief judges how to “handle these things.”

Perhaps there should be.

The power of Doe

John Doe judges are invested with awesome powers in determining the direction and scope of the investigations – including whether they are conducted in secret. Witnesses and potential targets of the probes have dramatically reduced rights.

“Any witness examined under this section may have counsel present at the examination but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses, or argue before the judge,” according to Wisconsin law on John Doe proceedings.

Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a “target” of the investigation, according to court cases upholding the statute.

John Doe law in the state has come a long way since its first use in Wisconsin’s territorial days.

“When (the John Doe) statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so,” the Wisconsin Supreme Court said in 1989. “This was found to be a very unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them.”

The law was created to “protect citizens from arrest and imprisonment on frivolous and groundless suspicion.”

But critics say the investigations led by the Milwaukee County DA’s office, including a nearly three-year probe into Gov. Scott Walker’s former aides and associates when he was Milwaukee County executive, are nothing more than partisan witch hunts.

Milwaukee County Sheriff David A. Clarke has said the John Does have been “weaponized” for political gain.

Like a grand jury, John Doe investigations give prosecutors subpoena and search powers, as well as the ability to call oath-bound witnesses to testify. And they may be conducted in secret. The investigation draws its name from the unnamed people involved, and is intended to be an independent, investigative tool to determine whether a crime has been committed — and if so, by whom.

With so much power in the hands of law enforcement and a presiding judge, is there the potential for abuse?

The short answer, said Waukesha County District Attorney Brad Schimel, is yes.

Schimel, a Republican running for Wisconsin attorney general, told Wisconsin Reporter that the secret investigations are designed to protect innocent people from unfounded accusations.

But he believes there is room for abuse.

“Any time there is power vested in government officials, from a police officer working street patrol all the way up to the D.A. to judges, there is potential for abuse,” said Schimel, noting he has not been approached to be involved in the latest John Doe. “That’s not the way it’s supposed to work. Everyone is supposed to act ethically, they’re supposed to base decisions on things that have a legal basis.”

Contact M.D. Kittle at mkittle@watchdog.org

Part of 137 in the series Wisconsin's Secret War
  1. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
  2. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
  3. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
  4. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
  5. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
  6. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
  7. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
  8. Sources: New judge named in Democrat-led secret probe
  9. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
  10. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
  11. Conservative targets bring in big guns to Democrat-led John Doe fight
  12. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
  13. Center for Media and Democracy: Liberals are morally superior
  14. Wisconsin Dems suddenly support political investigations
  15. WI Republican attorney general to represent judges in Democrat-led John Doe probe
  16. Republicans speak out about silent John Doe targeting conservatives
  17. Biggest secret in John Doe may be just how judges and special prosecutors are selected
  18. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
  19. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
  20. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
  21. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
  22. John Doe target O’Keefe taking on IRS, too
  23. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
  24. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
  25. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
  26. Liberal group looking to take Wisconsin’s John Doe national
  27. John Doe judge: ‘Results of the John Doe speak for themselves’
  28. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
  29. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
  30. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
  31. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
  32. John Doe prosecutors wanted higher-priced lawyers, source says
  33. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
  34. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
  35. Recusal in John Doe case raises questions of fairness, purpose
  36. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
  37. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
  38. ‘Easy target': Kelly Rindfleisch breaks silence about John Doe probe
  39. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
  40. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
  41. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
  42. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
  43. Target: John Doe prosecutors making up campaign law as they go along
  44. John Doe, as it is being used, must go, WI senator says
  45. John Doe target says prosecutors latest move another delay tactic
  46. John Doe prosecutors sound defensive in latest court filings
  47. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
  48. Media coalition asks judge to open sealed John Doe documents
  49. Are John Doe prosecutors sweating out federal judge’s decision?
  50. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
  51. This is what the Fourth Amendment looks like?
  52. What’s next for now-defunct John Doe probe?
  53. Appeals court stalls judge’s order halting John Doe probe
  54. Federal judge’s ruling could open up sealed John Doe records
  55. Federal judge orders John Doe probe shut down again
  56. Lawmakers call for review of GAB’s secret John Doe activities, funds
  57. Lawyers, lawyers everywhere and other dispatches from John Doe Land
  58. Secret’s out: The world is beginning to learn more about WI’s John Doe
  59. Still their little secret? Questions remain on John Doe gag order
  60. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
  61. John Doe prosecutors suddenly support opening sealed court records
  62. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
  63. John Doe prosecutors voice phony outrage, legal source says
  64. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
  65. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
  66. For the Walker-hating left, John Doe is ‘Mission Accomplished’
  67. Sources: No urgency in WI Supreme Court on John Doe
  68. Would Walker settlement with John Doe prosecutors be a deal with the devil?
  69. Contempt questions surround reported John Doe deal talks
  70. Walker’s John Doe response raises more questions than answers
  71. Sources: Attorney General passes on defending GAB in John Doe cases
  72. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
  73. John Doe targets sue Wisconsin’s Government Accountability Board
  74. Federal judge says his order halting John Doe probe should be clear to prosecutor
  75. John Doe special prosecutor’s bill still shrouded in secrecy
  76. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
  77. John Doe special prosecutor obeys judge’s order
  78. ‘Never-ending’ John Doe never ended, WSJ reports
  79. Appeals court upholds judge’s order shutting down John Doe probe
  80. O’Keefe keeps collecting big wins in John Doe lawsuit
  81. John Doe I judge says he’s not responsible for John Doe II
  82. Will taxpayers have to pay for frivolity of John Doe prosecutors?
  83. John Doe prosecutors jump back into the dark?
  84. What about those prosecutors? Questions surround other John Doe DAs
  85. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
  86. Federal judge blasts John Doe prosecutors – again – as he denies records release
  87. Right on cue: Document dump fuels anti-Walker donation drive
  88. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
  89. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
  90. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
  91. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
  92. John Doe prosecutors engaged in premature justification, conservatives say
  93. Is John Doe probe a case of a mini NSA in Wisconsin?
  94. AG opinion means accountability board’s John Doe secrets are safe — for now
  95. Senator asks attorney general to compel GAB to open up its books
  96. GAB now playing secrets in state John Doe lawsuit
  97. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
  98. John Doe prosecutors engaged in war of words — lots and lots of words
  99. Judge denies conservatives’ request to add GAB to civil rights lawsuit
  100. Oral arguments set in John Doe prosecutors’ appeal
  101. In John Doe Land, the left doesn’t illegally coordinate
  102. John Doe document blitz must have broken mainstream media’s heart
  103. Senator: Looks like accountability board is hiding something
  104. Kelly Rindfleisch appeal to test validity of John Doe digital searches
  105. Conservatives in John Doe battle know disclosure comes with a heavy price
  106. Appeals court orders release of some John Doe documents
  107. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
  108. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
  109. ‘Retaliation': Docs show state prosecutors launched mini-NSA probe of WI conservatives
  110. John Doe prosecutors take desperate, unethical slap
  111. Walker ‘smoking gun’ story has tiny glaring flaw
  112. Wisconsin prosecutors aim to shut down conservatives
  113. Conservatives appeal to common sense in John Doe appeals case
  114. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
  115. First Amendment big guns back targets of John Doe probe
  116. Was John Doe judge a rubber stamp?
  117. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
  118. Another blow for Wisconsin’s restrictive campaign finance law
  119. Wisconsin prosecutors appeal for protection from blowback in partisan probe
  120. Is John Doe story colored with a bit of ‘Macbeth?’
  121. GAB director says agency just following the law in John Doe probe
  122. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
  123. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
  124. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
  125. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
  126. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
  127. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
  128. Who’s paying the bill? Report casts questions on GAB and John Doe payments
  129. Target of secret John Doe probe is fighting back and speaking out
  130. The day John Doe rushed through the door
  131. Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
  132. Conservative group asks court to stop John Doe ‘constitutional injury’
  133. Conservatives to appeals court: ‘You don’t know Doe’
  134. Armed and growing: Milwaukee County DA beefs up his ‘police force’
  135. Federal judge stops John Doe prosecutors from bothering conservative group
  136. Wisconsin Supreme Court takes another pass on John Doe case
  137. No surprise: Bice buries the lead, Walker follows the law

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Kittle is a 25-year veteran of radio, newspaper and online journalism. In July 2011, Kittle joined Watchdog.org as bureau chief for Wisconsin Reporter. He has spent much of the past three years covering the seismic political changes taking place in the Badger State. Last year, Kittle joined Watchdog’s national reporting team, covering everything from energy policy to governmental assaults on civil rights. Beyond being published in Wisconsin’s daily newspapers and in multimedia news outlets, Kittle’s work has appeared on Fox News, and in Human Events, Reason Magazine, Newsmax and Town Hall. His special investigation into a politically charged John Doe probe, “Wisconsin’s Secret War,” was the basis of a 2014 documentary on Glenn Beck’s TheBlaze. Kittle has made several appearances on Fox News, including “On the Record with Greta Van Susteren. He serves as weekly politics commentator for Lake 96.1 FM in Lake Geneva, and WRJN-AM 1400 in Racine. His resume includes multiple awards for journalism excellence from The Associated Press, Inland Press, Wisconsin Broadcast Association and other journalism associations. Contact Kittle at mkittle@watchdog.org.

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