By John DiMotto
It was announced at a recent press conference conducted by officials of the Milwaukee County district Attorneys Office and the Government Accountability Board that a prominent Wisconsin Railroad CEO was being charged with campaign law violations for making illegal campaign contributions based on information gathered during a John Doe proceeding. While most people have heard or read about various John Doe proceedings, a full understanding of what they entail is a mystery to many. I thought this would be a good time to examine the law regarding John Doe proceedings in Wisconsin.
The John Doe proceeding in Wisconsin is outlined in 968.26 of the Wisconsin Statutes. Its purposes is to convene a proceeding before a judge to determine whether a crime has been committed in the court's jurisdiction.
Request for a John Doe Proceeding
The request to convene a John Doe proceeding ordinarily comes from a district attorney (DA) although there are times when the complaining party is a citizen. If the complaining party is a DA, the judge SHALL convene a hearing.
If the complaining party is not a DA, the judge shall refer it to the DA for review unless the complaint relates to the conduct of the DA in which case the complaint is referred to a special prosecutor (SP). However, the word "shall" in the context of this statute is not mandatory in all instances. The matter shall be referred to the DA only "if the four corners of the complaint provide a sufficient factual basis to establish an objective reason to believe that a crime has been committed in the judge's jurisdiction." see Naseer v. Miller, 329 Wis.2d 724 (Ct. App. 2010). This is because the intended purpose of a John Doe proceeding is to serve "both as an inquest into the discovery of crime and as a screen to prevent 'reckless and ill-advised' prosecutions." see State ex rel Reimann v. Circuit Court for Dane County, 214 Wis.2d 605 (1997).
When a DA is making the request, it is usually because the efforts of law enforcement to investigate a crime are being thwarted and their investigation is being impeded. When the request is being made by a citizen, it is usually because the citizen feels that law enforcement and the DA are not being responsive to his/her complaints.
If the judge convenes a John Doe proceeding, the judge shall subpoena witnesses requested by the DA or SP and shall examine any witnesses who are called by the DA or SP, although ordinarily it is the DA or SP who conducts the examinations of witnesses given their knowledge of the entire matter. Requests to grant immunity to compel testimony can be made, by the DA or SP and if granted, witnesses must testify or be subject to contempt.
The John Doe proceeding may be secret or open.
Any witness called to testify at a John Doe proceeding may be represented by counsel at the proceeding although the attorney may not examine any witnesses or argue before the judge. The role of the attorney is to advise his/her client at the proceeding.
The proceedings are recorded. If the proceeding is secret, the testimony taken shall not be open to inspection by anyone except the DA or SP unless it is used at a preliminary hearing or trial of the accused and then only to the extent that it is so used.
At the conclusion of the John Doe proceeding, the judge determines if there is prosecutive merit to warrant the issuance of a criminal complaint and arrest warrant.
DA Request for John Doe
When the request for a John Doe proceeding comes from a DA, the hearing shall be granted and the DA presents the case to the judge. At the conclusion of the proceedings the DA can independently issue a criminal complaint or ask the judge to do so.
Citizen Request for John Doe
In a case where the complainant is a citizen and in the circumstance where the complaint is referred to a DA or SP, the DA/SP has 90 days to issue charges or refuse to issue charges. If the DA/SP refuses to issue charges, all of his/her investigative reports along with a written explanation as to why charges are not being issued must be given to the judge. Additionally, the judge may require law enforcement to provide all of their investigative reports for the judge's review. The judge need not subpoena and examine under oath the citizen complainant or any witnesses that that the citizen complainant may have. Only is a John Doe hearing is convened shall the judge subpoena and examine under oath the complainant and any witnesses that the judge determines to be necessary and appropriate to ascertain whether a crime has been committed and by whom it has been committed.
Under prior law the judge was required under all circumstances to examine the complainant. This is no longer necessary. Under the current John Doe statute, a judge may consider matters extrinsic of the actual petition in determining whether to convene a John Doe hearing. After reviewing all of the information provided, the judge shall convene a hearing if he/she determines it is necessary to determine if a crime has been committed. Under the current law, the judge shall consider the credibility of testimony and information in support of an opposed to the citizen's complaint in making the decision as to whether to convene a John Doe hearing. The judge can weigh the evidence, which is a change from prior John Doe law. Ultimately, it is within the discretion of the judge as to whether he /she shall convene a hearing. The only recourse by a citizen complainant if a judge will not convene a John Doe hearing is to seek a Writ of Mandamus.
The current John Doe statute as set forth above, is the most recent version of the law. It has been amended within the last two years, making changes to citizen based requests to curb abuses. The new law recognizes the need for wide judicial discretion to evaluate a citizen complaint for a John Doe proceeding in order to ensure fairness in the pursuit of justice.