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Wednesday, March 13, 2013

Must John Doe Evidence Remain Secret?

Witnesses are free to speak out about what they know

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John Chisholm
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When Judge Neal Nettesheim signed an order closing the three-year John Doe investigation into Gov. Scott Walker’s Milwaukee County executive office, he required that the secrecy order remain in place.

Secrecy was important in this case, like all John Doe cases, so that witnesses could testify without retribution. Secrecy also preserves the innocence of those who are under investigation and are never charged with a crime.

Walker certainly relied on Nettesheim’s secrecy order to avoid reporters’ questions about what exactly happened when he was Milwaukee County executive and running for governor in 2010. He has only said that he’s cooperated with prosecutors who were looking into his county and campaign operations, and he said he was prevented from speaking publicly about his testimony.

But now that the Walker-related John Doe is concluded and all of the possible criminal charges have been made, why must the evidence presented during the investigation remain secret?

Some knowledgeable sources believe it doesn’t have to be secret.

In fact, even without going to court and asking Nettesheim to lift the secrecy order, witnesses are able to speak out about what they know about Walker’s campaign and county operations.

 

Witnesses Can Talk If They Choose

Milwaukee County Assistant District Attorney Bruce Landgraf, who ran the investigation, told the Shepherd that John Doe witnesses aren’t completely prohibited from speaking out about what they know.

Witnesses are not able to discuss what happened during the actual investigation, which questions they were asked or how they testified. But, Landgraf said, nothing prevents them from talking about their own knowledge of matters that may be related to the Doe.

“A John Doe witness is always foreclosed from talking about what that person saw, touched, tasted or smelled in the John Doe hearing itself,” Landgraf said. “But that person may decide, or may decide against, talking about things that he or she knows independently of the John Doe.”

And it doesn’t matter if the witness was granted immunity or not, Landgraf said.

Thirteen individuals were given immunity in the Walker-related John Doe, including those who testified about the illegal donations made to Walker’s campaign by railroad executive William Gardner. Gardner pled guilty to two felony counts and was fined $166,900, the highest campaign-related fine in state history.

Also granted immunity were Walker’s gubernatorial spokesman Cullen Werwie; his former county spokeswoman, Fran McLaughlin, now working for Sheriff David Clarke; and local attorney David Halbrooks.

While the immunity information is required to be made public and had been posted on the state’s court records website during the investigation, everything about Case 2010JD007 has now been deleted from the site.

“This case is sealed and is not available for viewing by order of Reserve Judge Nettesheim,” it states.

But bits and pieces of testimony have been revealed in criminal charges brought against Walker associates. For example, the criminal complaint against former Walker aide and Republican campaign fundraiser Kelly Rindfleisch includes testimony from Walker campaign operatives Jim Villa (also Walker’s one-time chief of staff at the county), Andrea Boom and Stephan Thompson. Rindfleisch was sentenced to six months in jail and three years of probation for felony misconduct in office.

Pieces of Republican campaign operative Mark Block’s John Doe testimony show up in the criminal complaint against close, longtime Walker aide Tim Russell. Russell has been sentenced to two years in jail for embezzling money from a charity for veterans.

Any of these witnesses can talk about what they know about Walker’s county aides doing political work on the taxpayers’ time, or how or why Russell installed a private Internet router in the county executive’s suite.

Other witnesses not named in criminal complaints are also able to shed light on the many loose ends left unresolved by the closing of the investigation. For example, what really happened during the bidding for the proposed lease of office space for county agencies? And why were prosecutors so interested in obtaining former Walker aide Cindy Archer’s computer that the FBI broke into her Madison home to obtain it?

 

Documents Still Secret

Also at issue are the documents and emails obtained as part of the John Doe investigation. They’re still under Nettesheim’s secrecy order and only bits and pieces have been made public in the criminal complaints. But these documents could be made public if Nettesheim agrees to lift the secrecy order.

That would require legal action and Nettesheim likely wouldn’t agree to it, attorneys tell the Shepherd.

But that’s not the only way to make these emails and documents public. If the documents were created or sent on county computers, they could be released as a result of an open records request. After all, if the documents contain no evidence of crimes, they do not incriminate anyone and should be part of the public record.

But, as we now know, Walker’s county aides routinely used their personal email accounts during regular business hours and sent them on the private wireless router set up by Russell.

These private emails could be considered public records if they were created on county computers or sent during the county workday.

According to documents on the state Department of Justice website, “E-mail sent or received on [a public] authority’s computer system is a [public] record. This includes personal e-mail sent by officers or employees of the authority…. E-mail conducting government business sent or received on the personal e-mail account of an authority’s officer or employee also constitutes a record.”