Is Brad Schimel the Ace in the Hole for John Doe Opponents?

Lawyer from “Making a Murderer” Pleas with Him

by Matthew Rothschild, Executive Director

February 9, 2016

Attorney General Brad Schimel
Attorney General Brad Schimel

Desperate to block any appeal of the Wisconsin Supreme Court’s July 16 decision in the John Doe II case, lawyers for those embroiled in the case are counting on Wisconsin’s Attorney General Brad Schimel to be their ace in the hole.

None other than Dean Strang, the terrific lawyer who shines so brightly in the Netflix Wisconsin documentary, “Making of a Murderer,” has urged Schimel to intervene in behalf of Strang’s client, who is unnamed. Strang wants Schimel to deny the district attorneys who have taken over the case the right to appeal.

In a letter to Schimel dated February 1, Strang laid out his argument: “By law, appeals on behalf of the State of Wisconsin are the province of the state’s highest legal official, the Wisconsin Attorney General,” Strang wrote. The people of Wisconsin, he added, have a right to expect their AG to “not allow others to usurp that statewide role.” He closed with an echo, asking Schimel to “defend those statutes and your office itself by usurpation by others not entrusted with speaking for the State of Wisconsin in appellate courts.”

Here’s the background:

The Wisconsin Supreme Court’s July 16 decision not only halted the John Doe that was investigating Scott Walker’s alleged coordination with outside groups during the recalls. It also made the ludicrous claim, contradicted by 40 years of U.S. Supreme Court precedent, that the First Amendment prohibits the state from banning such coordination. Then, on December 2, the Wisconsin Supreme Court essentially fired the special prosecutor but invited some district attorneys to petition to join the case on the prosecution side with the expectation that they may appeal to the U.S. Supreme Court. Three district attorneys—Ismael Ozanne of Dane County, Larry Nelson of Iowa County, and John Chisholm of Milwaukee County--did petition the Wisconsin Supreme Court, and on January 12, it granted their motion to intervene.

Last Friday, the Wisconsin Supreme Court acted as though the three district attorneys indeed have the authority to appeal the court’s July 16 decision.

“To the extent that the Intervenor District Attorneys intend to pursue review in the U.S. Supreme Court, the decisions on what to argue and what not to argue will likewise be part of the exercise of the prosecutorial function on behalf of the State,” the Wisconsin Supreme Court said. And it granted the district attorneys the right “to file unredacted versions of documents contained in the John Doe II records and this court’s records in the United States Supreme Court.”

But as Justice Shirley Abrahamson noted in her separate opinion on Friday, the question of the Wisconsin Attorney General’s authority in this case, and that of the district attorneys, is still “pending here.” She didn’t find merit in Strang’s argument, by the way, for two reasons. First, the Wisconsin Department of Justice, under then-Attorney General J.B. Van Hollen, already backed out of the case because of the perception, as he put it, that he couldn’t act “impartially.” And second, as Abrahamson noted, “Although the attorney general and Department of Justice ordinarily represent the State’s interest on appeal in state courts, private counsel or other government lawyers have represented the State in defending a statute.”

Nevertheless, Schimel could jump in and assert his privilege and try to stop the appeal from going forward, and the conservative majority on the Wisconsin Supreme Court could do a 180 and say, upon further review, that actually the district attorneys can’t proceed with their appeal, which would bury John Doe once and for all.

It would be a scandal, but the majority on the court hasn’t been exactly shy about that in the recent past.

WDC Executive Director Matthew Rothschild
Matthew Rothschild
WDC Executive Director

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