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Prosecutor puts end to high-court choking case

By   /   August 25, 2011  /   No Comments

By M.D. Kittle | Wisconsin Reporter


The answer was simple and straightforward.

When asked whether she felt pressure from Republicans and Democrats in putting together her decision, Patricia Barrett said “no.” The Sauk County district attorney said she was just doing her job —  the job she’s done for more than 15 years.

“We are often asked to make determinations as to whether or not to file criminal charges,” she told Wisconsin Reporter on Thursday.

But Barrett’s charging decision wasn’t some drunken-driving case, or a typical assault and battery case. She was tasked with deciding whether enough evidence existed to charge a Wisconsin Supreme Court justice with assaulting a fellow justice.

Barrett said, “No.”

The decision

Barrett, appointed as special prosecutor in the case, ruled Thursday that neither Supreme Court Justice David Prosser nor high court Justice Ann Walsh Bradley will be charged for a scuffle involving the two.

“I reviewed all of the documents, and I do not believe there is sufficient evidence to charge Justice Bradley or Justice Prosser,” the district attorney told Wisconsin Reporter.

The decision comes more than two months after assault allegations poured out of the deeply divided Supreme Court, with liberal Bradley charging that the conservative Prosser put her in a choke hold, and Prosser defenders saying Prosser was trying to defend himself against Bradley who rushed him with raised fists.

Barrett said she reviewed 70 pages of interviews, 47 pages of attachments, two discs containing photos of Bradley’s office and her assistant’s office, and one audio interview with Prosser, timed at two hours and 17 minutes.

The background

The altercation occurred June 13, preceding the court’s 4-3 decision that upheld Gov. Scott Walker’s legislation, eliminating most collective bargaining for many public employees. Prosser was in the majority and Bradley among the dissenting.

Prosser came out bruised but victorious in a Supreme Court election in April, in which the justice narrowly defeated Democratic challenger JoAnne Kloppenburg. Nearly 1.5 million ballots were cast in what usually is a low-turnout judicial election.

Kloppenburg, who lead by 204 votes and looked to be the winner, lost when some 7,500 ballots were discovered — the result of a counting error in Republican-heavy Waukesha County.

Dane County District Attorney Ismael Ozanne, a Democrat, earlier filed a lawsuit, claiming a Republican-led legislative committee violated Wisconsin’s open meeting law by moving forward the bill curtailing collective bargaining. Ozanne sought to overturn the law.

Prosser and fellow conservatives on the court ruled that the collective-bargaining law was valid, and certain areas of the open meeting law don’t pertain to lawmakers.

Ozanne received the Dane County Sheriff’s Department findings from its investigation into the assault accusations. Earlier this month, he asked Dane County Circuit Chief Judge William Foust to name a special prosecutor.

Barrett, a Republican, got the nod.

After being named special prosecutor, Barrett told reporters that she keeps politics out of the prosecutor’s office.

“My belief has always been that the prosecutor and sheriff’s jobs are not partisan,” she said in a story published in the Isthmus’ Daily Page. “It’s just not appropriate to hold those positions and be partisan.”

The healing?

Prosser and Bradley remained unapologetic in their statements, following Barrett’s decision.

Prosser accused Bradley of sensationalizing “an incident that occurred at the Supreme Court.”

“I was confident the truth would come out, and it did,” he said in the statement. “I am gratified that the prosecutor found these scurrilous charges were without merit.”

Barrett said the investigation documents would be released to the public Friday.

“I have always maintained that once the facts of this incident were examined, I would be cleared,” Prosser said. “I look forward to the details becoming public record.”

Bradley said she never intended to focus on criminal prosecution, but workplace safety.

“To that end, chief (of Capitol Police Charles) Tubbs promptly met with the entire court, but the efforts to address workplace safety concerns were rebuffed,” Bradley said. “Law enforcement then referred the matter for a formal investigation, and I cooperated fully with the investigation.”

Peter Rofes, law professor at Marquette University Law School in Milwaukee, said he wasn’t surprised by the special prosecutor’s decision, that it was a likelier outcome against a recently re-elected Supreme Court justice.

Rofes, an expert in Supreme Court jurisprudence, said it’s clear by the justices’ statements that there will be no healing, no moving forward in the wake of Barrett’s decision.

He said he has serious concerns about the capacities and capabilities of some of the justices.

“In my view, not all seven members of the court are intellectually, psychologically, emotionally either capable of or committed to doing what I believe is the central task of appellate judges — deciding litigated cases in accordance with law and allowing the chips to fall where they may,” Rofes said.

Barrett, who said she plans to retire when her term is up in 2013, said the case won’t define her tenure in the district attorney’s office.

“I don’t view this as any different than what we do day to day, day in and day out,” she said. “This was a case. It doesn’t have anything to do with what they do or who they are. It’s the situation and what the facts are.”