Posted on 04/29/2015 8:00:03 AM PDT by afraidfortherepublic
MADISON, Wis. — Milwaukee County District Attorney John Chisholm has broken his usual “no-comment” silence on all things John Doe by firing off a very public and very confrontational response to Gov. Scott Walker.
First Amendment and other legal experts have blasted the partisan prosecutor’s rhetoric as somewhere between childish and downright scary.
Could the man who brought Wisconsin its notorious John Doe investigations face professional sanctions for suggesting Walker could face criminal defamatory charges for criticizing Chisholm’s investigation?
Maybe, but actual charges probably aren’t likely, legal ethics experts tell Wisconsin Watchdog, although many agree Chisholm’s threatening language is troubling.
Beyond the fact Chisholm and crew have long claimed they are bound by John Doe secrecy orders, there are strict legal and ethical guidelines regarding what prosecutors can say publicly about the people they are investigating. Some legal experts tell Wisconsin Watchdog that Chisholm may have peeked his nose right over the line.
Wisconsin’s Rules of Professional Conduct for Attorneys are modeled in large part after the American Bar Association’s rules for litigating in the “Court of Public Opinion.”
The ABA admonishes that all attorneys should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused” unless such statements are “necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.”
In the section titled, “Special Responsibilities of a Prosecutor,” the ABA notes that in the context of a criminal prosecution, “a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused.”
It’s difficult to make the case Chisholm was doing anything but hammering back at Walker, who during a trip to Iowa this past weekend lambasted the long John Doe investigations that have targeted the Republican governor’s campaign and his conservative allies.
“I said even if you’re a liberal Democrat, you should look at (the raids) and be frightened to think that if the government can do that against people of one political persuasion, they can do it against anybody, and more often than not we need protection against the government itself,” Walker told WHO-AM in Des Moines. He was referring to a recent report in the National Review that opened with a 2011 law enforcement raid of Walker aide Cindy Archer and several others in October 2013.
“As (the National Review) pointed out, there were real questions about the constitutionality of much of what they did, but it was really about people trying to intimidate people…” Walker said.
It seems likely Chisholm’s public statement to Walker was intended as more than just a rebuttal.
“As to defamatory remarks, I strongly suspect the Iowa criminal code, like Wisconsin’s, has provisions for intentionally making false statements intended to harm the reputation of others,” Chisholm said in a statement published by the Milwaukee Journal Sentinel on Saturday responding to Walker’s comments.
Chisholm, however, issued the statement before figuring out that Iowa, like most states, doesn’t have criminal defamation codes.
“I would say commenting on the credibility of someone who is related to the investigation generally is something prosecutors shouldn’t do outside the courtroom,” said Peter Margulies, professor of professional responsibility at Roger Williams University School of Law in Bristol, Rhode Island.
But Margulies doesn’t necessarily believe Chisholm’s comments rise to a full-blown ethics breach under the ABA’s model ethics rules. He said he would be more concerned had Chisholm publicly discussed the facts of the investigation.
John Doe prosecutors seemingly have done as much through the dumping of the thousands of pages of documents related to an investigation that was supposed to be bound by secrecy. Such documents helped erroneously paint Walker as at the center of an “illegal scheme” in the mainstream press. An attorney for the investigation’s special prosecutor was forced to correct the record following the document dump, clarifying that the information as interpreted was not correct.
But errant document releases aren’t the same as public statements, Margulies said.
Prosecutors are allowed to respond to allegations of misconduct under safe harbor provisions, but First Amendment experts argue Chisholm went beyond simply responding to Walker’s criticism.
Ronald Rotunda, distinguished professor of jurisprudence at Chapman University in California, called Chisholm’s statements outrageous.
“There is no justification for a prosecutor to do this,” Rotunda said. “If you were to write a recipe to chill your political opponents, this would be it. The only different between (Russian President Vladimir) Putin and this guy (Chisholm) is Putin charges his enemies with tax fraud and sends them to Siberia.”
It is not known whether anyone has filed a complaint against the Democratic district attorney.
Keith Sellen, director of the state Office of Lawyer Regulation, said his office would not be able to provide an advisory opinion or make a comment about something that could possibly be the subject of a grievance with the regulatory agency.
Chisholm surely has turned chatty lately following the detailed accounts in National Review about early-morning raids on the homes of targets of the political John Doe probe he launched. Up until Walker publicly criticized the probe as a witch hunt that has intimidated conservatives, Chisholm has mostly refrained from commenting on the investigations.
Now he appears to be striking back at Walker and political activist Eric O’Keefe, whose Wisconsin Club for Growth was among dozens of conservative groups investigated. O’Keefe has filed multiple lawsuits against the John Doe prosecutors accusing them of violating the conservatives’ constitutional rights.
The investigation has been stalled since January 2014 when the presiding John Doe judge tossed out several subpoenas sought by the investigators because they lacked evidence a crime was committed.
That presents an interesting question.
Wisconsin’s “Special Responsibilities of a Prosecutor” section states a prosecutor “in a criminal case or a proceeding that could result in deprivation of liberty shall not prosecute a charge that the prosecutor knows is not supported by probable cause.”
The special prosecutor in the multi-county John Doe probe has appealed the John Doe judge’s ruling that found no probable cause to support prosecutors’ theory that conservative groups and Walker’s campaign engaged in campaign finance violations.
The matter is now in the hands of the Wisconsin Supreme Court, which will decide, among other questions, whether the investigation may resume.
Part 197 of 196 in the series Wisconsin's Secret War
◦Experts: Chances rise that U.S. Supreme Court will take John Doe case
◦U.S. Supreme Court to consider hearing John Doe-related case
◦Who was the reporter outside Cindy Archer’s house?
◦John Doe reform bill stalls in Legislature
◦Lawmaker: Chief justice’s civil rights complaint is ‘pathetic’
◦New documents expose GAB’s ‘parallel’ probe expenditures
◦Did chief justice show her hand in dissenting John Doe opinion?
◦U.S. Supreme Court could soon decide whether to take John Doe Case
CAn charges be brought against John Chisholm for his remarks against Scott Walker?
FReep Mail me if you want on, or off, this Wisconsin interest ping list.
If he can discuss it, everyone else can too. Damned Nazi.
Milwaukee County District Attorney John Chisholm
Time to go Chisholm. Try Russia or Iran.
If I were one of his victims his knees would already have permanent Louisville Slugger Trademarks on them.
Do they cross an ethical line? They can’t even see the line in the rear-view mirror...
boy, the John Doe law needs fixed or repealed, pronto.
the scene: Chisolm’s home; he is in his home office. It is dark outside as it is late in the evening. Chisolm is hard at work destroying documents related to the ‘John Doe’ home invasions ordered by he and his assistants. A roaring fire crackles in the corner fireplace as paper after paper is thrown into the flames.
The door to the office opens and two large men enter. One is wearing a very expensive suit.
“Who are you?” barks Chisolm as he reaches for a fireplace tool.
“Your future. Please sit down.” responds the man wearing a suit. “And I would not touch that fireplace tool if I were you” he warns.
“What do you want?” whines Chisolm as he slowly sits.
Producing a paper, the suit places it on the desk. Chisolm quickly reads the document.
“I’m not signing that!” he screams and starts to stand up. Then he notices the other man is holding a Taurus Desert Eagle, not pointed at Chisolm but very visible. Chisolm slowly sits back down.
The suit speaks “We will be leaving in a moment and when we do, either your signature or your brains will be on that paper. Choose wisely.”
End scene.
You have a remarkable talent for spinning a tale. Ever thought of being a screen writer?
Would a Wisconsin Freeper please file an ethics complaint against Chisholm with the state bar?
Who has standing?
Maybe the Prosecutor will run a SWAT on the Governor’s Mansion. He sounds as if he is capable of that. Probably the only reason for hesitation is the prospect of a gun battle with the governor’s bodyguards. Would there be an effective reaction in the state? would the feds intervene to protect Chisholm? What if the governor got shot in the SWAT?
The Bar’s disciplinary body will chew him up and spit him out.
That tale was nice.
It gave me a warm fuzzy feeling.
you should go pro!
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