Former John Doe prosecutor continues to practice delay, attorney says

By M.D. Kittle | Wisconsin Watchdog


GIVE IT BACK; Former Special prosecutor Francis Schmitz, pictured here in this cartoon, doesn’t want to return property his investigation seized. He wants the state Supreme Court to hang onto it. An attorney for one of the conservatives targeted in the unconstitutional probe says the property must be returned to its rightful owners.

MADISON, Wis. – The former special prosecutor of Wisconsin’s infamous John Doe II investigation wants the state Supreme Court to take custody of the millions of documents and other property he and his fellow investigators illegally seized in a sweeping dragnet of dozens of conservative groups.

Conservative targets say Francis Schmitz has an inherent conflict of interest in his position as former prosecutor of an unconstitutional investigation, and his involvement in the disposition process at any level is like the proverbial fox guarding the hen house.

In a response filed late last week, Schmitz asked the court to deny a motion by two conservative targets seeking the supervised return of their property.

Schmitz argues that “divestment” of the seized “evidence” is “functionally the same as an order to destroy the evidence.”

In essence, Schmitz insists returning the many materials taken from the conservatives the “John Doe II” prosecutors spied on and harassed for years would allow the illegally obtained documents to be destroyed by their rightful owners. He wants them to be turned over to the Supreme Court.

Dean Strang, attorney for Deborah Jordahl, one of the conservative litigants involved, said Schmitz is a kind of “human shield” for Milwaukee District Attorney John Chisholm, the Democrat who launched the investigation in 2012, and his assistant prosecutors.

“I think at this point you can’t assume he (Schmitz) is only speaking for himself, that he may be out there prodded by those behind him, who, I think, have an interest in these materials going to the court rather than going directly to all those people whose privacy has been impacted by the investigation and its conduct,” Strang said.

The motive of the prosecutors, as it has long been, is delay, Strang said.

“Overall the desire here is not to return information to the people whose privacy was most affected but rather delay that day and distance themselves by delivering it to a Supreme Court clerk office to hold for some indeterminate amount of time,” Strang said.

Schmitz did not return a request for comment.

John Doe prosecutors have much to lose now that their investigation is truly legally dead. Chisholm and his assistants are the defendants in a civil rights lawsuit filed by Cindy Archer, a former aide to Republican Gov. Scott Walker caught up in an earlier secret John Doe probe. Time will tell whether other targets will file such lawsuits.

Earlier this month, the U.S. Supreme Court rejected Chisholm’s petition to review the state Supreme Court’s July 2015 ruling declaring the probe unconstitutional.

With all legal avenues at a dead end, the prosecutors will have to follow the state court’s order to return the property they seized. In December, the court held off on its order demanding the millions of records be returned to the people targeted in the probe and that copies be destroyed, should the prosecutors petition the U.S. Supreme Court. They did. They lost.

Jordahl and other targets are demanding the immediate return of their property, in a process presided over by an impartial source.

And they don’t want the prosecutors in charge of the disposition process.

“That would be like firing your IT guy and then leaving him in the office for the next two weeks without changing your passwords,” Jordahl said.

Conservative targets are concerned the prosecutors and investigators, who have long had access to the voluminous digital files, could destroy evidence of alleged crimes they committed in conducting the John Doe probe.

They believe the prosecution team, or someone close to them, leaked court-sealed documents to the liberal British newspaper, The Guardian. Mainstream publications nationally published subsequent stories with charges of nefarious campaign coordination schemes. The stories drew heavily on the leaked court documents, which, sources say, included conflated and erroneous accounts of illegal deals between Walker’s campaign and the conservative groups under investigation.

Targets have called for an investigation into the leaks. That’s the one thing, at least on the surface, the prosecutors and the people they targeted agree on. But they want to take it a step further.

“All prosecutors involved in the John Doe II investigation support an investigation of all leaks that occurred during the pendency of the proceedings,” Schmitz wrote. Ostensibly, he wants an investigation into John Doe information obtained by Wisconsin Watchdog, the Wall Street Journal, and the Milwaukee Journal Sentinel. “In fact, on the heels of this publication of John Doe information, prosecutors wrote to both the John Doe judge and the (state) Attorney General requesting this action be taken.”

Wisconsin Attorney General Brad Schimel, at least through his spokesman, says he doesn’t like to comment on potential or pending investigations. He apparently has no problems, however, commenting on other potential investigations.

Schmitz concedes that the prosecutors cannot conduct such an investigation because they are potential suspects, but he goes on to suggest that it’s possible that John Doe targets may have leaked the documents to The Guardian – for reasons that he does not make clear.

Schmitz is clearly bothered by a previous motion filed by Strang.

“I am troubled by the language attorney Strang uses in paragraph 6 of the motion. At no time during this investigation (or for that matter at any time in my 30 years as a prosecutor), was it my goal to ‘punish’ people,” Schmitz wrote. “Furthermore, I have done nothing to “resist’ the legal conclusions of this court or any other court.”

“While I may disagree with those conclusions, I respect the rule of law and will abide by the decision,” Schmitz added.

Yet, the prosecutor, conservative targets allege, failed to fulfill some of the basic instructions of the Supreme Court, like clearly telling the people his investigation spied on what investigators took from them.

So Schmitz, the former special prosecutor with the inherent conflict of interest in the closing matters of this long legal battle, continues to make requests of the state Supreme Court, and public comments criticizing the court’s ruling.

Strang described as “enormously presumptuous” Schmitz’s conclusion that returning the seized property is tantamount to its destruction.

“It’s their property,” Strang said. “It’s not the prosecutors’ property. It’s their (the conservative targets) property to take back and they want it back.”