New Developments in Wisconsin’s John Doe Investigations

Free Speech & Election Law Practice Group

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Between 2010 and 2013, a team of Wisconsin state officials assembled by the Milwaukee County District Attorney, and later involving the state’s Government Accountability Board, targeted the activities of certain groups who had supported Governor Scott Walker’s policy agenda. The probes seized millions of emails, bank records, hard copy documents, and other materials through a combination of electronic search warrants, subpoenas, and raids that used controversial tactics. Litigation in the Wisconsin state courts froze the John Doe investigations in early 2014. The Wisconsin Supreme Court ultimately terminated the investigations in the summer of 2015. In reaction, the Wisconsin legislature passed sweeping reforms of its campaign finance and criminal laws, eliminating the Government Accountability Board, changing John Doe rules, and fixing secrecy laws so that they restrained the prosecutors, not the targets. But there were new developments eight weeks ago: Wisconsin Attorney General Brad Schimel issued a report following an investigation he initiated when, in September 2016, the British Guardian published approximately 1,400 pages of seized witness emails and draft court filings prepared by the prosecution team. Schimel found that a trove of evidence at the Government Accountability Board offices may have been leaked, and promised to institute contempt proceedings against prosecutors and other state officials. As a result, new individuals have learned that their materials were seized and reviewed during the original investigation. Some existing litigation may be impacted, and new litigation may occur. Find out what’s next.

Featuring:

Mr. Edward D. Greims, Partner, Graves Garrett, LLC 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Friday, February 16, 2018 during a live teleforum conference call held exclusively for Federalist Society members.

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on New Developments in Wisconsin's John Doe Investigations. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Mr. Edward D. Greims, who is a Partner at Graves Garrett, LLC. After our speaker's remarks, we'll open for an audience Q&A. So please keep in mind what questions you may have for our expert.

 

      Thank you for speaking with us today, Eddy. The floor is now yours.

 

Edward D. Greims:  Well, thank you, Wesley, and it's good to be back here. I've come to give you all an update today on the John Doe investigations in Wisconsin. And I think many people are aware of these. People in Wisconsin certainly are. And there's been some coverage over the last couple of years. In fact, I think Kim Strassel even wrote a chapter in a book about this that came out a year or two ago. But what most people don’t realize is that there's still a John Doe judge and that things are not all neatly wrapped up and tied with a bow. And there've actually been some developments in the John Does over the last 60 days or so.

 

      So I'll kind of take a step back here. I think most people know that the John Does have been cited by many people as one of the worst examples of what people would call a political prosecution run amuck. On the other hand, not everybody says that. There are campaign finance reform groups, prosecutors that were involved in the now-defunct Government Accountability Board in Wisconsin, which is sort of their campaign finance and elections board. Those people have all said that the investigation was just following up on credible or even, I think they've said at times, solid evidence of a violation of the law. So there is still another story, even after all of this, where people say that they're just investigating a legal violation.

 

      Anyway, we do know this. Over several years starting in 2010 and going through, I would say, late 2013, millions of emails were seized using over 100 electronic search warrants from dozens of targets in Wisconsin and across the country. The investigators even wanted to investigate Sean Hannity. The efforts of many people stopped it first in early 2014 and then in the Wisconsin Supreme Court. And then, finally, the U.S. Supreme Court denied cert on the prosecutor's petition to reverse that back in 2016.

 

      So today where are we? Many people argue that simply ending the investigation isn't enough. And the question has been presented in a couple of different civil cases and is being asked now: what remedies are available for people who were subjects or targets of the John Doe investigations? What's being done now, and what's the current status? So I'm going to take about 10 minutes to briefly recap the history of the John Does and it'll be a major summary. I'll be condensing greatly here. And then, about 10 minutes just to discuss attempts at remedies and some more recent events, and then I think we can open it up for questions.

 

      So what was called John Doe I was an investigation started by the Milwaukee County prosecutor, John Chisholm, in May of 2010 while Scott Walker was Milwaukee County Executive and was also running for governor. Now, it's important to note how John Doe I started. There was a simple complaint. The Walker staff when he was county executive, had come to believe there had been some embezzlement from a county fund, I think for a veteran's monument, and they were pretty sure they knew who did it. They thought it was the treasurer of that fund. So they made a report to the Milwaukee County DA, the prosecutor, back in April 2009. So April 2009. That's also when Walker announced he was running for governor.

 

      Now, it took an entire year, over a year, from April 2009 when this report was made for someone to finally decide to start the John Doe. They used this one complaint as the basis to open the John Doe. And the case ended up not being very complicated or hard to make on the embezzlement, but somehow or other once the prosecutor got his foot in the door, they began to expand this John Doe investigation to cover more and more things that really had nothing at all to do with the initial subject of the investigation.

 

      Now, very quickly, I need to explain some terms here. A John Doe is a special type of investigation that began way back when I think Wisconsin was just a territory, and it was incorporated early on in Wisconsin's statehood. It was eventually made a statutory scheme and only a few other states have something similar. In Kansas, my neighboring state across the border here, it's actually called an inquisition. That's the name that they give this type of proceeding. And I think I've learned that one of the Dakotas may have a similar proceeding. But basically, it's sometimes called a one-man grand jury. That one man is the judge. So what the prosecutor will often do is take a complaint and file that, open a John Doe, a judge is assigned, but that judge does not sit as a court. The judge sits as a sort of judge in chambers and then every application for subpoena or a search warrant is brought to the John Doe judge. And so, the theory there is that, whereas a grand jury, you know, you can have your stereotypical runaway grand jury, that that will not happen when a judge properly exercises oversight over the investigation. Sometimes people call the John Doe an investigative tool.

 

      Anyway, the entire purpose of the John Doe proceeding is simply for the John Doe judge at the very end to make a finding of probable cause. So the entire proceeding is supposed to be directed toward that end goal, and there's some authority in Wisconsin that once you've reached that point, you've got to stop. You cannot use the John Doe to actually get discovery on the underlying criminal violation. Then you need to move on and indictments need to issue at that point.

 

      So that's what a John Doe is supposed to be. The other important hallmark of a John Doe is secrecy. Going back to the very beginning and now in a statute, Wisconsin has always held that these John Does can be secret, and the 'can' has kind of turned into a common practice. Always there is a secrecy order that seals the docket, and what it basically does is stops other people from coming into the investigation phase, if there's any questioning before the John Doe judge, or viewing the evidence. And the reasons for that have allegedly been not just to protect the integrity of the investigation, but also to protect people who are just witnesses or who have wrongly been accused from suffering adverse consequences, from the public and from their friends, from accidently or from wrongly being drawn into a John Doe. So it's supposed to protect both sides. It's not that different from the factors behind federal grand jury secrecy.

 

      So, anyway, with that background, John Doe I moved along, and it expanded many, many times. Each time the prosecutors would return to the judge—his name is Neal Nettesheim—for an expansion of the John Doe to a new theory. Well, meanwhile, Governor Walker was elected and Wisconsin passed Act 10, their law regarding public sector unions. It was controversial. We all read about it everywhere else in the country. And Scott Walker was lauded by some and attacked by some. In Wisconsin, recalls were launched, and, of course, this is all being noticed by the prosecutors, especially because some of their reforms of the new law would actually effect government employees, including the prosecutors themselves. I'm making no allegation there. I'm just saying that we know that that issue was noted by the prosecutors who were working on these cases.

 

      What eventually happened is that John Doe I expanded into campaign finance issues, and it expanded into the question of whether people back when Scott Walker was county executive, whether people were doing political activity on county time. Well, it was only a short hop from there, apparently, to seizing all kinds of communications with political consultants and just kind of a vast group of people who worked on the Walker campaign. They were able to seize so much that they got almost real-time communications on the recall campaigns that were happening even while the investigation was going on.

 

      And so, what eventually happened is the Milwaukee County DA staff who saw this consulted with the Government Accountability Board and said, "Gosh, we think that here's coordination here between outside groups and people on Governor Walker's campaign." Well, with that they went back to Judge Nettesheim and he authorized I think what was called the 17th Expansion of John Doe 1. And finally, I think Judge Nettesheim said, "You need to petition to open an entirely new John Doe." Apparently, that was a bridge too far, and that 17th expansion was viewed as the reason for a new John Doe proceeding.

 

      So in August 2012, John Doe II was officially opened. Now, almost immediately, members of Wisconsin's Government Accountability Board—as I told you before, that's their version of the FEC, their ethics and election campaign finance administrator—those members were admitted to John Doe II. And when we say admitted, we mean they were brought within the secrecy order and allowed to share and view the information that the prosecutors were seizing via electronic search warrants. In fact, we uncovered evidence that the Government Accountability Board Members were consulted and brought into the loop even before John Doe II was officially opened.

 

      So what happened next? Throughout late 2012 and through the summer of 2013, Milwaukee County consulted with the GAB on drafting of affidavits for search warrants and some subpoenas and they obtained hundreds of thousands, if not millions, of emails from dozens of political figures, including -- and they also obtained bank records and other information like that.

 

      Now, in the summer of 2013, they stopped and they took stock. They'd already run through basically two campaign cycles with this investigation, and they decided that it was time at that point to expand to other counties in Wisconsin because they didn’t have jurisdiction over everyone in Milwaukee County. The other problem they realized is they've got so much material they haven't looked at, there's so much work to do here they need funding, and Milwaukee County can't really pay for all this.

 

      So they found a unique solution that we later challenged in a taxpayer standing lawsuit. What they did is they would have the John Doe judge open separate John Doe proceedings in each of these other counties. Then they would have a special prosecutor appointed in each one of those counties so that you'd have a unified special prosecutor even if under Wisconsin law you've got to have a separate John Doe for each county. So basically turn this into a multicounty John Doe. Then they got the GAB, the Government Accountability Board, which has at that time almost limitless appropriations for investigative purposes. They had the GAB hire the special prosecutor under the title of special investigator for the ethics commission, and they just said, "We'll pay you."

 

      The GAB also agreed to pay for housing and reviewing all of these millions of emails of electronic discovery. And then, what we got in the briefing, as we later learned the GAB even ghostwrote much of the briefing that was being signed officially by the special prosecutor.

 

      Well, all this came to a head in October 2013. By that point, there was a new John Doe judge, Judge Kluka, who had been appointed solely by the director of state courts, who in Wisconsin reports directly to the Chief Justice of the Wisconsin Supreme Court, who at that time was Shirley Abrahamson. Judge Kluka was given in September as mass of affidavits summarizing evidence that had been seized over the last year asking for an entirely new slew of subpoenas, physical search warrants, and electronic search warrants. She approved all of those. She signed all of them, and that led on October 6, 2013 to armed raids of some targets, who were either political consultants or had other roles here, at their homes in the pre-dawn hours. And the Wisconsin Supreme Court decision that later came down described those in some graphic detail: search lights, battering rams, people's kids wondering why they're all being herded into the living room with mom and dad, that all happened.

 

      Other people were slated to receive these raids, but then ultimately only got a subpoena. We don’t really know why, but many dozens of subpoenas went out. And without disclosing things that are under seal, basically the subpoenas were drafted in such a way that people who received them could just look at the subpoena and realize that dozens of groups in Wisconsin and across the country were being investigated as part of John Doe II.

 

      And so, this was really the first sort of coming out party for John Doe II. And now, at this point, people had known about John Doe I, but there had been a big announcement that John Doe I had been closed after just a few successful prosecutions or pleas earlier in the year. So this was big news when this came out. People had not realized that there was still this investigation going on.

 

      Now, our own client filed two motions in October 2013. First, a motion to suspend inspection of any seized materials, and then a week later a motion to quash the subpoena. Now, those don’t always work with criminal subpoenas. They usually don’t, right? Everyone, people who represent clients in these circumstances know that when you go to the judge that's authorized the subpoena and say move to quash, it doesn't often work out. Our theory was that what appeared to be the theory of the prosecution which looked like a coordination theory, which would be a violation of the campaign finance law. Most people are familiar with this at the federal level. We said that that theory was invalid as a matter of Wisconsin law; therefore, there couldn't be probable cause and the subpoena should be quashed.

 

      And by the way, many others filed motions. Maybe even some people who are on this call. Anyway, as these motions were being filed, Judge Kluka recused herself. To this day, we don’t know the basis of that recusal. The rest of what happened in the John Doe, much of it is still secret, I think, and we probably cannot discuss it on this call. But in January of 2014, the John Doe Judge, Judge Peterson, did issue an order quashing all the subpoenas and ordering the seized property returned. Now, we later gained access to the internal emails of the prosecution team through the taxpayer lawsuit that I mentioned earlier. And this was met with shock and disbelief and rage by the members of the prosecution team.

 

      What we do know is that Judge Peterson stayed his decision after that when the prosecutors claimed that they needed access to the seized materials in order to seek appellate relief from the quash motion and to defend themselves against civil lawsuits that I don't think had been filed yet but they could hear the thunder was in the distance and they knew these were coming.

 

      Okay, so I'm going to keep within the time I promised here. I'll just kind of fast forward a little bit. Basically from that point, people briefed in the appellate courts in July of 2015. So now we're almost two years after the raids. Wisconsin Supreme Court took several related appeals about the procedures for running the Doe, and it also took up one or two matters that kind of were going to test the underlying law here. First of all, the Court expressed doubt but upheld much of the procedure adopted in the Doe -- in John Doe II based on a forgiving standard of review. However, a majority found that there was no basis to appoint a special prosecutor to govern all these different John Doe's, but they wouldn't remove them because the thought was it's a supervisory writ; they're not going to take action. Second, on the legal question they held that the special prosecutor's theory was, quote, "unsupported in either reason or law. Consequently, the investigation is closed." And that's the most frequently quoted part of that opinion.

 

      Now, you will hear even today, in fact, in a press release just sent out by former members of the GAB only a few weeks ago, you'll hear people today say that the Wisconsin Supreme Court changed long-standing law that everyone assumed was correct, and that they basically got the First Amendment wrong, and that they improperly held that you cannot -- it's not possible to coordinate issue efficacy, and that no other court has gone that far, and that basically, what they imply, is that it's a political decision. I could do an entire call on that theory; I won't go into that, but I'll just briefly say that Wisconsin statutes were very "labyrinthine" as one word that the opinion used to describe it, but they were unusual, and that they used some very sweeping definitions as a catchall for almost every other part of their contribution bands and their reporting requirements. And so, it was uniquely susceptible to an overbreadth and vagueness attack, which is ultimately how the plaintiffs prevailed there.

 

      But here's the other important part: the Supreme Court required the prosecutors and all others to cease all activities related to the investigation, return all property seized from any individual or organization, and permanently destroy all copies of information or materials obtained. Now, the prosecutors had filed Caperton motions in this case wanting to recuse or to trigger recusal of some of the conservative, what they thought were the conservative members of the Court. And so, immediately when this was issued, there was a cry that, "Well, wait a second, these members of the Court are now trying to help out their buddies who are being investigated." Well, of course, as you could imagine, the prosecutors filed a petition for cert with the U.S. Supreme Court, and they raised not only the First Amendment issue, as you can imagine, but also they raised their Caperton due process claims, claiming that they as the prosecutors as the State had a due-process right to have had certain Supreme Court judges recuse themselves.

 

      So this cert petition was filed, I think, in early 2016. It was delayed several times. There were several extensions granted. And finally, I think, for the long conference in the fall of 2016 after the end of the summer, it was taken up. Now, a funny thing happened 10 days before that. The British Guardian dropped a bombshell and released about 1,400 pages of documents from a source that it wouldn't name. But it consisted of actual seized material from some of the targets and internal drafts from the prosecution team that cited those materials. And it purported to run sort of an exposé on the underlying theory of the prosecutors and tried to strongly suggest that the prosecutors were onto something, and that there was something amiss with the Wisconsin Supreme Court's decision.

 

      Now, as you can only imagine, that made a lot of waves, and many people believed—I will say rightly, I think rightly—that this was timed to influence the U.S. Supreme Court's decision making on whether to grant cert. Well, it didn't work. On October 3, 2016 cert was denied. Under a preexisting order, the special prosecutor, who by this point was not being paid anymore, actually, had to gather up all the evidence that had been seized, wherever it was, and file it with the Wisconsin Supreme Court for safekeeping, and certify that he had done that properly. He tried to do that on November 3rd. However, but this point Attorney General Schimel had started an investigation which led to a report that was issued just before Christmas of this year.

 

      Now, meanwhile, some other civil litigation was filed. There were three federal lawsuits filed. Some of you may be wondering, is there a 1983 case here somewhere? And several people thought, yes, there was. But two of those 1983 cases died in the Seventh Circuit and did not proceed further, and those cases are worth, again, probably a separate call, I won't get into. A third case we filed, that on a 1983 violation theory but under the Stored Communications Act on behalf of a group called the MacIver Institute, which is in Wisconsin, and we alleged that they did not properly obtain the electronic search warrants to seize emails of a key MacIver officer who had been involved with some of the activity here. And so, that case was moving forward in 2017, and actually I will say I argued that in the Seventh Circuit just in November.

 

      However, the Seventh Circuit has been hostile to all these claims. And the question that it has asked is, "Why is it up to the federal courts to grant a remedy here? Why shouldn't Wisconsin courts be the ones to clean all this up?" And so now let's turn to the events of the last 30 days or so. I'm going a little too long so I'll keep this short.

 

      Attorney General Schimel issued a report from his investigation, and it was unsealed in early December, a few weeks before Christmas. Schimel was investigating how the Guardian leak could've occurred. And that investigation also looked into were all the seized materials actually gathered up and filed with the Wisconsin Supreme Court, or are there people out there still holding these documents wanting to leak them to embarrass targets or witnesses in the investigation or otherwise make their lives difficult? Maybe they want to use them as part of a criminal complaint to start yet another prosecution of these individuals. So Attorney General Schimel tried to get to the bottom of all this. Here's what his report showed.

 

      First of all, he'd found that after Judge Peterson—the initial John Doe judge—had halted review of the materials way back in 2014 when we won our first round of motions, special bundles of what the GAB staffers thought were gold documents—they called it gold—were compiled and emailed among GAB staff. Those same bundles could be traced, and you could see them appearing within the Guardian-leaked documents. Interestingly, the bundles were actually tied to the GAB's briefing goals at that point. Now, again, no one knew the GAB was briefing. They were ghostwriting for the prosecutors. But, for example, one bundle, one or two bundles show that emails were searched purely for purposes of trying to seek recusal of what the prosecutors viewed as conservative leaning Wisconsin Supreme Court judges. So that's not the reason these emails were seized, but they had thought, "Hey, we've got these. Let's see what we can find. Let's go through there. Maybe we can file a Caperton motion." So after they were supposed to stop looking, they went back and looked for those things.

 

      The Schimel report also notes that seized materials were returned by the special prosecutor to the Wisconsin Supreme Court but that much other evidence was not given to him by the GAB. It remained at the GAB offices and wasn’t given to Schmitz. The report is actually pretty thin on whether prosecutors still might have evidence. The report says no, it doesn’t think that they do. In particular, though, there is a hard drive of PST files and many of the emails that were given to an investigator in early 2014, and the report doesn't mention what happened to that. And so, I'm not saying the report is wrong at all; it's just that the details behind that don’t happen to be in the report so there's still some interest there.

 

      Finally, with respect to the Wisconsin Supreme Court materials, it indicates that then-Chief Justice Abrahamson—actually, she no longer was, but she was still a justice—had accessed the unlocked file cabinets where the Schmitz materials were being store at the Wisconsin Supreme Court, and had reviewed the files just before the Attorney General's Office investigators came to the court to review them. Finally, it notes that a hard drive of Shane Falk materials that he handed over before he left the GAB somehow had been lost. And obviously the suspicion is there that that hard drive might have the Guardian documents on there. We don’t know that, yet.

 

      So to sum it up, millions of emails and other seized material now exist in at least two places: one, at the Wisconsin Supreme Court Clerk's Office and two, for related reasons which I won't go into here, but I could answer a question about it, the Western District of Wisconsin in federal court. However, they probably also exist—there's good chance that they do—in the private Gmail accounts that members of the investigation team opened up, and they used those, unsecured, instead of using state more secure email systems. And, again, there's also that Shane Falk hard drive that was lost—and by the way, Falk was the senior staffer at the GAB who did the grunt work on this case.

 

      Recently, a new John Doe judge was appointed. His name is Judge Kendall Kelley, and he is from Brown County, which is Green Bay. He held an open hearing about two weeks ago with the press and the media present, and in that hearing he read a list of a few dozen questions that he wants anyone who is interested, you know, all of the lawyers for subjects or targets or the prosecutors, to brief. Now, I will say this is the first public hearing that's been held anywhere in any of the John Does or any of the proceedings. And so, it was a novelty for all of the attorneys, many of them who saw each other for the first time for four years into this case, almost five years into this matter.

 

      Now, what Judge Kelley is asking about is what can he do? What orders can he possibly entertain with respect to all these seized materials that people want back? He wants to know, what other relief can he order in terms of sanctions? And he even asked, is he able to accept an amended John Doe petition and let the prosecutors start investigating again under a new theory? It's simply not clear what will happen now, but there is a briefing schedule that's now going to happen before this new John Doe judge, Kelley.

 

      And so, the question now becomes how does this saga come to an end? Is it going to be through the action of, whatever, I think, maybe, the fifth John Doe judge, now, Judge Kelley? Or is it going to have to be the Wisconsin Supreme Court that steps in and finally orders relief in terms of giving all these groups the materials back, letting them see what was actually seized, and what may well be distributed somewhere else, maybe outside of our country at this point.

 

      And what about the people who did all this? If it was wrongful conduct by the prosecutors or by the people at the GAB, when do they ever pay the price for that? Whatever happens so that this doesn't happen again? And who sets that up? So far, the federal courts have not been the place. So my final point I want to make is it's my own opinion that it will have to ultimately have to be the Wisconsin Supreme Court that steps back in and gives some order to this process and helps all these groups that have been dealing with this for almost five years to finally have some conclusion and some finality.

 

      So with that I'm all set. I'm sorry I went a little longer with my remarks, but I can now take questions.

 

Wesley Hodges:  Thank you, Eddy, for that wonderful presentation. Let's go ahead and move to audience questions. In a moment, you'll hear a prompt indicating that the floor mode has been turned on. After that, to request the floor, enter the star key and then the pound key on your telephone. The queue is currently open so if anyone would like to ask something from Eddy, please enter the star key and then the pound key. Oh, Eddy, it looks like we do have one question in the queue. Let's go ahead and move to the first caller.

 

Caller 1:  If I'm the only one in the queue, I have two questions, actually. The first would be I understand Wisconsin has nonpartisan but very partisan Supreme Court elections, and I think there's a seat up this year. Is there any chance that the balance switches from what you would say is a conservative court to a liberal court if the results of this election turns out a certain way?

 

      And the second question is, one of the things I marveled at was the splits between almost the powerlessness of the accused during regular criminal trials and the way these political trials -- it's almost like a different track of justice. Prosecutors are almost invincible within the realm of regular criminal law. But here they seem to have been very vulnerable and even maybe some would say plowed over by a political system. So I was hoping maybe the speaker could comment on both of those questions.

 

Edward D. Greims:  Well, on the first question, that's kind of a political judgement and maybe a Missouri lawyer isn't the best one to answer that question. There may be some other listeners who are probably -- if they could get in, I'm sure they would give you their thoughts on this. But I would say that even accepting all the premises in your question, which I don’t necessarily agree with, I think given the votes that have happened before and the sort of recusal that's happened on that court, I don't think that an election on one judge will change the court. So I think that's how I'd answer your first question.

 

      Next, here's the thing to remember. The accused were powerless here from 2010 all the way through to 2013. And so, most of the damage in the John Doe was done in secret before anyone knew what was happening. And the prosecutors, frankly, were given every benefit of the doubt all the way through, and that's why they were so astounded when the John Doe judge, who they'd had, as we later found, they'd actually tried to have a role in choosing their own judge, the John Doe judge, when he ruled against them. So to me the story is not one of the prosecutors being bowled over by the process; it's a rare case of amazing prosecutorial overreach that was only remedied at the very end and far too late in the day.

 

Caller 1:  Are there any lessons to be learned by your run-of-the-mill trial lawyers? Say Steven Avery's lawyer. Making [of] A Murderer. Same state, right? Are there any lessons to be learned by the criminal bar?

 

Edward D. Greims:  It's funny that you ask that question because I was thinking of that very point during the last question. And Steven Avery's counsel…let's see, and maybe I'm getting my facts wrong here, but I think Steven Avery's counsel was also counsel in the John Doe for one of the parties. And little did we know, actually. This attorney never mentioned to us that they had this other case that was going to be turned into a TV program while we were spending so much time on the John Doe. But to me that case is truly shocking. And, yes, what is different here, ultimately, is that motions to quash were filed by multiple different groups. And people hit Westlaw and they wrote long briefs. And it's just hard to do that in your run-of-the-mill case.

 

      So I think it does raise -- it is interesting. I think there is a disparity in the resources that can be leveled in a lot of these cases. And it almost takes an overreach like this where you pick on somebody who actually can fight back to expose some of these flaws.

 

Caller 1:  Thanks.

 

Wesley Hodges:  Thank you for your question, caller. Looks like the queue is open again so if anyone would like to ask any questions before the call ends today, please dial the star key and then the pound key.

 

      I want to let everyone know that this teleforum and all previously recorded teleforum are turned into podcasts and uploaded on our website. So please take a look at fedsoc.org to see the podcasts we have available as well as through iTunes and Google Play.

 

      Seeing that there are no questions coming up in the queue right now, and you still have some time if you'd like to ask one, Eddy, do you have closing remarks that you'd like to make that you didn't put in the beginning discussion?

 

Edward D. Greims:  Yeah, one thing I would maybe end with here, unless there's other questions, is there's an email from mid-to-late October 2013, and the initial motions to quash had just been filed, and they were being filed by people who were receiving paper subpoenas for documents that they had. And one of the investigators remarked to the rest of the team, "all these high-powered lawyers are filing all these motions to quash and they don’t have any clue that we have electronic search warrants and we've seized all of their emails, and that we are reviewing those at the same time." And I thought that was astounding when I finally got my hands on that email.

 

      And to me, maybe this goes back to the questioner's point, but again, we only uncovered that email because we were able to file a second taxpayer lawsuit. And, you know, how often does this kind of thing actually go on in other matters with other things you read about? For me, somebody who engages primarily in civil litigation, I was surprised to see that, and to not be told that, these other search warrants had gone out for the very same things we thought we were fighting on and winning on in our motions to quash, that they thought they had an alternative route, and they just weren't going to ever disclose it. To me, that's pretty troubling, and like I said, I think it raises questions about other prosecution like this that you read about.

 

Wesley Hodges:  Thank you for that insight, Eddy. It looks like the queue is still open so we'll just give it one more minute, or one more moment I should say, for anyone to put in the star key and the pound key if you have a question. Oh, looks like we do have one more so, Eddy, let's go ahead and turn to our next caller.

 

Caller 2:  Thanks. So I don't know if you've talked about this already, I did join a little late, but could you talk about the efforts or the steps that the Michigan legislature took to correct this process and is this something that can or should be replicated in other states that might have a statutory scheme that would allow this kind of activity elsewhere?

 

Edward D. Greims:  That's a good question, caller. Thank you. And the Wisconsin legislature really rose up and put in place some common sense reforms. The John Doe can't be used for this type of investigation anymore. So that was important. But I think just as important was—some might view this as a detail, but it was really one of the most pernicious aspects of the John Doe. What they said was that secrecy orders cannot be used to gag these subjects and targets from disclosing that they've been dealt with in this way. And so, you know, before there were threats that people, that targets, that subjects that went to the newspaper and said, "Hey, my home was raided. I think this isn't right," that they'd be violating the secrecy order by saying that. And so, the legislature went and changed the John Doe statute.

     

      Frankly, not many other states, though, have something like this. Like I said, Kansas does, and there are some benefits to having a John Doe. On the other hand, you might say, what about the judges that approved all the old search warrants before the new John Doe judge finally put an end to it? Is there some benefit to actually having a grand jury? I know that they often will -- people will say that it can be made to do what the prosecutor asks, but is there some benefit to possibly having somebody who might ask some questions about it? You know, maybe. Maybe that's better. But I don't know. I felt like Wisconsin was so unique. I'm not sure how much about the statutory changes the legislature made, laudable as they are, really can be replicated. I thought they were more fixing Wisconsin-specific issues.

 

Caller 2:  Thank you.

 

Wesley Hodges:  Thank you, caller, for your question. Seeing no new questions, Eddy, any last thoughts?

 

Edward D. Greims:  No, I think I've said it all and maybe too much. So thank you.

 

Wesley Hodges:  Well, Eddy, I think I speak on behalf of the audience and on The Federalist Society in saying we just want to thank you for the valuable time and expertise you shared with us today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us today. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.