January 16, 2015
by Dan Adams
The question of how a free society polices itself should be a perennial political topic. As Americans, we have entrusted law enforcement to keep us safe from criminals and chaos. We pay for our safety by voluntarily diminishing our own personal liberties. For the majority of us during the majority of our lives, this bargain pays off greatly in our favor as we’re free to travel, transact, worship, and politic without fear of crime or governmental interference.
This bargain is secured by two protections: the rule of law ensconced in our Bill of Rights and criminal process laws enacted by our legislatures, and by the discretion of law enforcement officials. It is the former, rule of law factor, that acts as the last protection when officials make poor decisions.
It is unfortunate that the discussion of how we police ourselves is being spurred by the deaths of Eric Garner, Michael Brown, and locally, Dontre Hamilton. It is even more unfortunate that anti-liberty groups are co-opting the debate for their own pet issues. Fortunately, responsible citizens are wrestling the conversation back from the professional protestors. We now have the opportunity to improve the bargain between liberty and safety. Nationally, leaders as diverse as Rand Paul and Cory Booker (and perhaps even more notably Charles Koch) are discussing the issue of policing a free society. The newly sworn-in Wisconsin Legislature has the opportunity to not only join this discussion, but also to enact concrete measures to protect our liberties.
Already Legislators are considering ways to amend the criminal process law that enables “John Doe proceedings;” the secret government process that allows prosecutors to conduct investigations under strict confidentiality gag-orders while compelling witnesses to testify under oath and produce their personal papers. Objectively, it is time to amend the Joe Doe Law to build in protections against overzealous or abusive prosecutors.
For instance, the Legislature could insert a requirement that the overseeing judge be shown, by voluntary sworn testimony, that “probable cause” of a crime exists before allowing the prosecutor to compel other witnesses’ involuntary participation. This would place the same burden on prosecutors seeking to instigate a John Doe investigation as is borne by every other law enforcement agent before executing a search warrant or making an arrest. Under current law, no probable cause requirement exists.
Other reforms could limit the time period allowed for a John Doe investigation and force the prosecutor to specifically identify who is the targeted subject and the particular suspected criminal conduct (we have an vast array of codified offenses on our books to choose from) of their investigation. As is clear with Milwaukee’s recent experience with the law, a John Doe can drag on for years, can expand without limit in subject matter and targets, and lose focus of its original intent.
Strict time limits would also provide an additional protection against abuse of the John Doe procedure. Prosecutors should be given time limits, for instance, 30 days to conduct a John Doe investigation with no ability to expand the inquiry to “transactionally related” investigations without new, independently obtained, evidence. These safeguards would prevent the prosecutor from investigating an individual because who they are (for instance their political role) rather than what they did.
While the John Doe law should be reformed to rebalance the interests of the individual versus the State, so too should criminal procedures that affect a larger portion of Wisconsinites who have entered the criminal justice system. Namely, requiring the return of Preliminary Hearings as an important safety guard against capricious or baseless prosecutions. Preliminary Hearings once afforded all Wisconsinites the ability to hear live testimony presenting the basis for the allegations against them in open court. Their attorneys could challenge the live witnesses and hold the government accountable, albeit at a comparably low burden of “probable cause.” Prosecutors and the police were held to some level of public scrutiny before continuing months of expensive, stressful, and reputation-destroying litigation.
Today, Preliminary Hearings in Wisconsin are a sham thanks to a 2011 law that allows prosecutors to present hearsay evidence (essentially statements made by a third person) to meet their probable cause burden. Now not only can a police officer testify about things said to them by eyewitnesses of crime, they can also testify as to what an eyewitness told to another police officer, who told the testifying officer (so-called “hearsay within hearsay”). Any child who has played “the telephone game” knows that statements passed through multiple re-tellings by others quickly loses its original meaning.
The impact of losing meaningful Preliminary Hearings greatly diminished personal liberties in favor of the State’s discretionary decision making. I believe it has also become a drain on tax dollars because of the unintended consequences of giving prosecutors the unfettered ability to proceed with cases without accountability –much like we’ve seen with the recent John Doe investigations. Lack of accountability is never something a free society should grant their government.
In Nevada, where I practiced as a Deputy District Attorney, prosecutors were bound by the normal rules of evidence (hearsay was excluded) during Preliminary Hearings. We also were required to prove, again albeit by the lower probable cause standard, each element of every felony we alleged. Rather than impair a prosecutor, the process forced us to thoroughly evaluate our cases prior to proceeding with serious criminal charges against our fellow citizens.
As a result of more significant Preliminary Hearings requirements, cases were resolved quickly as both sides were able to assess the relative strength of the case early in the case history. Quicker resolutions help to limit the stress of uncertain outcomes on crime victims. In contrast, in Milwaukee County crime victims often wait several months or even years to find out whether they will receive justice for the wrongs perpetrated against them.
Additionally, quick resolutions allows prosecutors to spend more time and resources to effectively prosecute the worst and most dangerous criminals. The negative unintended consequences of sham Preliminary Hearings in Wisconsin is apparent to anyone practicing in our criminal courts.
A free society must always question the balance between liberties and the police. Amending Wisconsin’s criminal process laws toward the individual could enhance those liberties and actually enhance public safety.
Dan Adams is an attorney and former prosecutor. He is also a regular political pundit on TMJ4’s Sunday Insight with Charlie Sykes. He can be reached at www.DefenseWisconsin.com