Recent Investigations Encourage Legislators to Reform Proceedings

A Senate bill to change John Doe proceedings in the state of Wisconsin was recommended for passage by the Senate Committee on Judiciary and Public Safety on a party-line vote and is now available for consideration by the full state Senate.

The bill, Senate Bill 43, would significantly change the laws governing John Doe proceedings. Under current law, a John Doe proceeding may be used to investigate any crimes. The bill would limit John Doe investigations to only be used for drug offenses, certain listed felonies, felony murder and racketeering or continuing a criminal enterprise, if the underlying crime being investigated is one of the aforementioned crimes and is a crime listed in the statutory definition of racketeering activating. In addition, any crime committed by an on-duty law enforcement officer, corrections officers, or state probation, parole or extended supervision officer could continue to be investigated by a John Doe proceeding.

The bill also changes how far the secrecy order, if entered into, of a John Doe proceeding extends. Current law allows the presiding judge to extend the secrecy to every participant in the preceding. The bill would only allow a judge to extend the secrecy order to the district attorney or prosecuting attorney, law enforcement personnel admitted to proceeding, interpreters, and court reporters. The bill also creates a penalty of up to $10,000 and/or imprisonment for those who break the secrecy order. Finally, a judge would only be able to enter a secrecy order upon a showing of good cause. Though John Doe proceedings are supposed to be conducted in secret to protect the reputations of individual who are part of the investigation – and have not been charged with a crime – during such proceedings information subject to a judicial secrecy order is often “leaked” to the media. By allowing, for example, an individual who is part of or subject to a John Doe investigation to speak about the proceedings, a goal of the bill appears to be to allow such individuals to respond to information leaked to the media and to afford them an opportunity to publicly defend themselves.

In addition, the bill would affect the length of John Doe proceedings. Current law does not limit how long a John Doe proceeding may last. Under Senate Bill 43, a John Doe proceeding may not last for more than six months, unless a majority of the judicial administrative district chief judges, for good cause, vote to extend the proceeding for an additional six months. An unlimited number of six-month extensions may be granted, but no extension may last more than six months. Similarly, the scope of proceedings may only be expanded if a majority of these judges, for good cause agree, whereas current law does not limit the scope of a John Doe proceeding, once initiated. Recently, the high-profile investigation of Governor Walker’s staff when he was county executive morphed, over years, into an investigation of his campaign and groups which support him. Despite no charges actually having been filed because of this second phase of the investigation, leaked stories have continued to appear in the media and those investigated have incurred substantial legal bills. A second goal of the bill appears to prevent such investigations-without-end from recurring by requiring periodic review and oversight the judicial administrative district chief judges.

Finally, the bill would require records be kept of the cost of a John Doe investigation and be made public record. Proponents of SB 43, and others, have been frustrated that the cost of these proceedings whether they bear fruit or not, are kept secret.