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OPINION - Fixing John Doe

by Chris Conley

NEWS BLOG (WSAU) No one knows if the John Doe investigation of conservative political action groups during the Walker recall of 2010 will move forward or be killed. It will be tied up in court for months. Judge Rudolph Randa has issued two rulings that, if allowed to stand, would shut down the probe. A three-judge appeals-court panel reversed him once. If the entire appeals court wants to hear arguments on the case it would be in limbo through the end of the year, and beyond the fall elections. That is the most likely outcome.

The state legislature should make use of this time and fix the John Doe law.

For starters, we'd be better off without it. In states that don't have John Doe investigations a judge has to review each case and decide whether a gag order is appropriate or not. Joe Doe laws are a one-size-fits-all approach where no one can say or reveal anything, period. It certainly unclogs the courts. It's also patently unfair to people who are under investigation.

What can the legislature do? Two things.

First, a revised John Doe law should set guidelines for when total secrecy is inappropriate. Remember, a person or a group thats under investigation still has First Amendment free speech rights including being able to discuss charges they may or may not face. They should be able to discuss whether a case might be brought against them. Reasonable exceptions would be if public disclosure compromises the investigation. In many other cases, the law is too far tilted against possible defendants. Suppose your office was raided, possible evidence seized, and you're not allowed to tell your employees and clients whats happening. Imagine what impact it would have on your business if the investigation dragged on for a year or more. You might not even know when the probe had concluded, or whether the investigation is expanding.

A second change would be increasing the penalties for leaking confidential information about court proceedings. Most leaks, but not all, come from prosecutors offices where good reporters develop long-term relationships and where large amounts of off-the-record information is shared. In situations where investigation-targets can't talk, the leaking of information is patently unfair. Harsher penalties for leakers would make some people think twice.

Wisconsin's John Doe law is unfair, especially in the hands of a zealous prosecutor who is using it as a political cudgel. The legislature could restore some balance.

Chris Conley
5.9.14


Image: Justitia, via Paxabay.com