Posted on 06/29/2015 7:53:50 AM PDT by afraidfortherepublic
MADISON, Wis. – State Supreme Court Justice Michael Gableman sees “grave implications for each and every citizen of Wisconsin” if the court does not take up the Fourth Amendment appeal of a former aide to Gov. Scott Walker.
According to a memo reviewed by Wisconsin Watchdog, Gableman is urging his fellow justices to reconsider their denial of Kelly Rindfleisch’s petition for review. The justices could vote on Gableman’s request at 11 a.m. Monday, sources tell Wisconsin Watchdog.
“The significance of this issue cannot be understated, and has grave implications for each and every citizen of the State of Wisconsin: Can the government seize all of your communications because it suspects that someone you know has committed a crime, and then look for evidence that you committed a crime simply because it has your communications?” Gableman writes in the memo.
“It should be obvious that this situation is the modern-day equivalent of general warrants.”
The justice could not be reached for comment Sunday evening.
Gableman appears to have had a change of heart since the court’s decision in March to deny Rindfleisch’s appeal of her conviction on a charge of misconduct in public office. That vote was 6-0, with Justice David Prosser not participating.
Gableman now needs two other justices to vote with him to take up the case up again.
Rindfleisch is the political prize in Milwaukee County District Attorney John Chisholm’s political John Doe investigation of former aides and allies of Walker. She was convicted in late 2012 for answering political campaign email while working in a government job. She is serving out her six-month sentence on home confinement in Sauk County, Wisconsin Watchdog first reported last month.
Rindfleisch was Walker’s deputy chief of staff when Walker was Milwaukee County executive. She began serving her sentence in April, a weeks after the state Supreme Court without comment declined to hear her appeal.
Chisholm, a Democrat, used wide-ranging warrants approved by the John Doe judge to go through tens of thousands of Rindfleisch’s professional and personal digital communications. She was not a target of the probe when investigators found that the aide, who was also working for the campaign of Republican lieutenant governor candidate Brett Davis, responded to campaign emails at her government job.
Rindfleisch has said prosecutors threatened her with lengthy prison time if she didn’t give them incriminating information on Walker. She had no information to give, so they charged her with a felony.
Rindfleisch immediately appealed her conviction, asserting that prosecutors violated her Fourth Amendment rights through general warrant searches. A state appeals court last year upheld the conviction on a 2-1 vote, with the dissenting judge concluding that the prosecutor’s search was overly broad and unconstitutional.
The majority opinion concluded that “Rindfleisch has failed to present any evidence at any time during these proceedings that tends to suggest that her Fourth Amendment rights were violated by the seizure authorized in these warrants,” the appeals court ruling states.
Gableman believes the court “must reconsider” the Rindfleisch case because warrants issued in the John Doe investigation amount to a “fishing expedition in which law enforcement received every communication …(Rindfleisch) sent or received and then rummaged through this information to find a violation of any crime, even one not identified in the warrants.”
Rindfleisch recently filed a petition asking the U.S. Supreme Court to review her case.
In his memo, Gableman writes that after he reviewed Rindfleisch’s federal petition, “it is clear that this case presents important questions regarding the scope of the Fourth Amendment in the digital age.”
The central issue, Gableman writes, is contained in the opening page of a friend-of-the-court brief filed in December by the State Public Defender’s office that urged the court to review the Fourth Amendment case.
“This case marks another collision on ‘the increasingly busy intersection between Fourth Amendment privacy considerations and the constant advancement of electronic technology,’” Assistant State Public Defender Colleen Ball wrote. “The issue is how the breadth and particularity provisions of the Fourth Amendment and … the Wisconsin Constitution apply to a warrant to search the email of a person who is not suspected of a crime, when that email is stored on the server of an Internet Service Provider such as Google or Yahoo.”
The implications of the appeals court’s decision are frightening, Ball wrote.
“The State may now seize the innocent citizen’s entire email account, search it in secret, and, judging from what occurred (in the Kelly Reindfleisch case), retain all of the seized email for future perusal,” Ball asserted in the brief. “The implications of the court of appeals decision are alarming.”
Ball said the public defender’s office would be grateful if the Supreme Court reconsiders this important Fourth Amendment case.
“The fact that the court may reconsider the legal arguments that we outlined in the amicus brief is good news in that we feel the arguments are strong arguments,” said Randy Craft, spokesman for the State Public Defender’s Office said.
Investigators, ostensibly looking for evidence of misconduct by Timothy Russell, another former Walker aide, tapped into Rindfleisch’s professional and personal electronic devices. Russell was eventually convicted of stealing from a county veterans fund.
Gableman takes aim at state Supreme Court Commissioner Mark Neuser, who advised the court to deny Rindfleisch’s petition for review.
The commissioners are attorneys who are hired by and serve at the pleasure of the court. They perform research, prepare memoranda and make recommendations to the court.
According to Gableman’s letter to his colleagues, Neuser argued that Rindfleisch “never comes to grips with the unrealistic nature of her arguments.”
When the appeals court judge who eventually ruled against Rindfleisch was preparing to dump Rindfleisch’s many personal emails that had nothing to do with the charges against her into the public domain, the plaintiff asked that the court and prosecutors at least come up with a filter to prevent irrelevant communications from being disclosed.
“It sounds great to say that the State should adopt ‘protocol[s]’ like ‘screening’ or ‘filter’ agents to ensure that private emails are excluded from a State’s search for incriminating emails’” Neuser wrote in a memo to Supreme Court justices.
“We all like separating the wheat from the chaff. But Rindfleisch pays no attention to the operational realities of law enforcement. How, exactly, would such a ‘protocol’ or ‘screening agent’ or ‘filter agent’ work given how easily electronic data can be hidden, mislabeled, and manipulated? Rindfleisch does not try to answer the question,” Neuser wrote.
Rindlfleisch doesn’t need to answer the question, Gableman contends, because Neuser’s argument “misstates the entire issue and misdirects the Court’s attention from the real issue” – that the investigators’ warrants “failed to state probable cause (Rindfleisch) committed any crime.”
In essence, Neuser contends that it would be inconvenient or inexpedient to have to filter out thousands of emails and texts in a universe of digital data. Gableman argues the prosecutors shouldn’t have been there in the first place.
As the late District 1 Court of Appeals Judge Ralph Adam Fine wrote in his dissenting opinion, “Simply put, we are governed by our Constitution, not expediency.”
In his memo, Gableman argues that there is nothing prohibiting the court from reconsidering its decision to deny Rindfleisch’s appeal. He notes the court’s “superintending authority” gives it the power to “act in extraordinary circumstances to correct the errors of the lower courts, regardless of the procedural posture of a particular case.”
In making his arguments, the justice quotes from Founding Father Patrick Henry’s warnings on the dangers of general warrants during the debate over the U.S. Constitution’s ratification in 1788.
“General warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized; any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred, may be searched and ransacked by the strong hand of power,” Henry declared.
Part 212 of 211 in the series Wisconsin's Secret War
Gableman calls for WI Supreme court to reconsider Reindflesh rights.
FReep Mail me if you want on, or off, this Wisconsin interest ping list.
Has Chisholm been sued by anyone yet?
Three felonies a day.
Once malicious government “servants” have your personal effects, thats how much you can be charged with.
Everyone is guilty of something.
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