1. John Doe Investigations “A John Doe proceeding is an independent investigatory tool used to ascertain whether a crime has been committed and if so, by whom” Attorney Paul E. Bucher Bucher Law Group. LLC 335 Austin Circle Delafield, WI 53018

2. Where does this come from? Purely statutory provision Section 968.26 –Pre- changes in 2009. See 2009 Wisconsin Act 24, effective 6/27/2009 –Grew out of perceived abuses of the process by those confined in prison –As existed prior to 2009 WI Act 24 If a “ person” complained to a judge that he/she had reason to believe that a crime was committed in the jurisdiction of the judge, the judge had to examine the complainant under oath and any witnesses produced, and the judge could subpoena more witnesses to see if a real crime was committed. If that person was the District Attorney then the judge had to subpoena the witnesses. The examination could be in secret

3. The Actual Procedure…… If it appeared probable from the testimony given that a crime had been committed and who did it, the complaint could be reduced to writing, sworn to and signed and a warrant had to be issued. Various immunity provisions applied but only upon the request of the District Attorney Intended as a very strong investigatory tool for the District Attorney and gave him/her quasi- judicial powers. ( See State v. Washington 83 Wis. 2d 808(1978) for proposition this did not violate separation of powers doctrine)

4. Wisconsin Act 24, effective June 27, 2009 Made significant changes in John Doe procedure in Wisconsin based on perceived abuses in the use of the John Doe statute by prison inmates not happy with treatment or the prosecution. –Created a reimbursement procedure of state officer or employee involved in a John Doe (prison guard etc..) –Made a John Doe discretionary or basically non- existent if the person who is asking for it is not the District Attorney. If a person now complains to the judge that a crime was committed the judge must refer the matter to the D.A.

5. New Procedure under WI Act 24 If court does refer the complaint to the D.A., the D.A. the D.A has to make a decision to issue charges or not within 90 days. –If no charges are issued, the D.A shall send the complaint back to the judge with a reason why he/she is not issuing charges. –The Judge then must convene a proceeding (hearing) only if the judge feels it’s necessary to determine if a crime was committed. It need not be in secret. –The court makes this decision by using any police report, files or records of the D.A. and other records the judge finds useful.

6. Secrecy?? Secrecy is required if the D.A. requests it Not required for non-District Attorney, unless Judge feels it is necessary If the proceeding is secret, the record of the proceedings and the testimony taken shall not be open for inspection by anyone except the D.A. (See State of Wisconsin ex rel Individual Subpoenaed to Appear at Waukesha County John Doe v. Honorable J. Mac Davis, 2005 WI 70, 2005) –A proper secrecy order covers questions asked, witnesses answers, transcripts and exhibits and other matter observed or heard at the secret John Doe. –“An important aspect of a John Doe is secrecy. Secrecy may assist the fact finding process. It keeps information from a target who might consider fleeing, prevents a suspect from collecting perjured testimony, prevents those interested in thwarting the inquiry from tampering with testimony or secreting evidence and renders witnesses more free in their disclosure.

7. Proceedings under 968.26 for a citizen complainant The extent to which the judge proceeds is in his or her sole discretion and may be in secret. –It is no longer mandatory that the judge issue a warrant or even charges. If the judge finds sufficient evidence (no longer probable cause) and the evidence is credible to warrant a prosecution, the judge may issue the complaint. A warrant is not mandated.

8. John Doe proceedings for D.A. If a District Attorney requests a judge to convene a John Doe, the judge MUST do so and MUST subpoena witnesses and examine the witnesses the D.A. identifies. The Judge issues the complaint and warrant It must be in secret if D.A. requests it Judge must subpoena witnesses and may grant immunity and hold persons in contempt

9. Historical Context John Doe proceedings have been around since Wisconsin’s territorial days. There are really two purposes: –Investigatory tool designed to allow Judges to determine whether a crime has been committed and if so, who committed it. –Second, they exists to protect innocent people from frivolous and groundless prosecutions. »First, the judge must determine whether a complaint has alleged objective, factual assertions sufficient to support a reasonable belief that a crime has been committed. »If so, and by a D.A. then the judge must proceed with a hearing and examine witnesses produced, but need not subpoena others unless it is the D.A,. Requesting the hearing.

10. Purpose of Doe The goal of a John Doe hearing is to allow the judge to determine whether it appears probable from the testimony given that a crime has been committed and who committed it, and whether to file a complaint. Scope is limited (or should be) to the subject matter of the complaint A judge is to oversee a John Doe hearing to ensure that the proceeding is conducted in an orderly and expeditious manner. The Judge cannot be shackled to a process that frustrates the goal of ascertaining probable cause in an expeditious manner. )See In the Matter of the John Doe petition: State of Wisconsin ex rel Ira Robbins v. Judge Patrick Madden (2009 WI 46, 2009)

11. Conclusion Very powerful tool that links judiciary and executive branch together and gives the D.A. broad subpoena authority. However a John Doe Judge does not act as the field marshal in a sweeping campaign against crime The John Doe is, at its inception, not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime in which the judge has significant powers. A John Doe is a feeble investigative device indeed, unless both the district attorney and the magistrate are amenable to using their office in furtherance of the investigation. (see State v Washington 83 Wis. 2d 808)/