Author: Marcus J. Berghahn
The news is full of references to an ongoing John Doe investigation concerning the activities of persons connected to Gov. Scott Walker while he served as Milwaukee County executive. John Doe, in this context, does not refer to a person; it is a legal proceeding.
The John Doe proceeding is an institution sanctioned by long usage since Wisconsin’s territorial days.1 The provisions of Wis. Stat. section 968.26 currently define the scope of a John Doe proceeding in Wisconsin, which is intended as an independent, investigatory tool to ascertain whether a crime has been committed and if so, by whom.
The goal is to allow the judge to determine whether it appears probable from the testimony given that a crime has been committed, and whether to file a complaint. But the proceedings are also designed to protect innocent citizens from the fallout of frivolous prosecutions.2
As the Wisconsin Supreme Court stated in 1889: “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. 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. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion.”3
Unlike normal criminal proceedings, which can be initiated if there is probable cause to believe a person has violated the law, John Doe proceedings help law enforcement develop the evidence necessary to establish the very existence of probable cause.
The John Doe proceeding gives law enforcement powers not otherwise available to them. For example, it gives law enforcement the power to subpoena witnesses, to take testimony under oath, to offer immunity from prosecution, and to compel the testimony of reluctant witnesses.
The proceeding is overseen by a circuit court judge. It is the responsibility of the John Doe judge to use his or her training in constitutional and criminal law and in courtroom procedure in determining the need to subpoena witnesses requested by the district attorney, in presiding at the examination of witnesses, and in determining probable cause.
In short, it is the judge’s responsibility to ensure procedural fairness and to decide whether to issue a complaint (that is, a criminal charge).
A John Doe proceeding begins one of two ways. In most cases – and it appears that the Milwaukee investigation started this way – the district attorney files a complaint with a judge.
The complaint, a sworn statement, alleges criminal conduct. The judge will then subpoena and examine witnesses identified by the district attorney.
A citizens’ complaint may also initiate a John Doe proceeding. Such a complaint is referred to the district attorney, but if the prosecutor refuses to issue charges, the judge may review law enforcement’s investigative reports on the matter and decide whether proceedings are necessary to determine if a crime has been committed.
In making the determination, the John Doe judge may consider “the law enforcement investigative reports, the records and case files of the district attorney, and any other written records that the judge finds relevant.”4 If there is sufficient credible evidence to warrant prosecution, the judge may issue a complaint and appoint a special prosecutor.
The role of secrecy
Generally, Wisconsin court proceedings are held in open court.5 A John Doe judge, however, has the power to determine whether the examination will be secret.
While the statute authorizing the proceeding does not require it, the proceeding is often secret, with only the conferring of immunity to a witness occurring in open court. The policy underlying secrecy is directed to promoting the effectiveness of the investigation. Courts consider the need to keep information about the investigation from the target in order to:
• prevent flight from prosecution;
• prevent the target of the investigation from collecting perjured testimony for the trial;
• prevent those interested in thwarting the inquiry from tampering with testimony or secreting evidence;
• render witnesses more free in their disclosures; and
• prevent testimony that may be mistaken or untrue or irrelevant from becoming public.6
The precise scope of a permissible secrecy order varies from proceeding to proceeding. Typically, a secrecy order covers questions asked, answers given, transcripts of the proceedings, exhibits produced during the proceedings, or other matters observed or heard in the secret session at a John Doe proceeding.
Judicial powers and the lawyer’s role
The powers of a judge presiding over a John Doe are broad and imbued with a great deal of discretion. The judge sits as a tribunal, and the judge’s authority has been interpreted to include the authority to issue subpoenas, adjourn proceedings, take possession of subpoenaed records, adjudicate probable cause, determine whether a lawyer has a conflict of interest in representing a witness, and to issue and seal search warrants.
The role of a lawyer in a John Doe proceeding is limited. A witness called before the judge may be represented by counsel.7 But the lawyer is not allowed to examine his or her client, cross-examine other witnesses, or argue before the judge.8
As the investigation in Milwaukee County has shown, the John Doe proceeding may lead to criminal charges. Those charges need not be directly related to the complaint that started the proceeding. When complete, the judge will determine whether probable cause exists to charge any additional individuals with a crime.
About the author
Marcus J. Berghahn is a shareholder at Hurley, Burish & Stanton S.C., in Madison. He concentrates his practice on defense of individuals and corporations accused of criminal misconduct in Wisconsin state and federal courts.
1 See State v. Washington, 83 Wis. 2d 808, 266 N.W.2d 597 (1978).
2 See State ex rel. Reimann v. Cir. Ct., 214 Wis. 2d 605, 621, 571 N.W.2d 385, 390 (1997).
3 State ex rel. Long v. Keyes, 75 Wis. 288, 294-95, 44 N.W. 13, 15 (1889).
6 State v. O’Connor, 77 Wis. 2d 261, 279, 252 N.W.2d 671 (1977).
7 Wis. Stat. § 968.26 (3). The lawyer will be subject to the secrecy order, but may not be required to swear an additional secrecy oath.