John Doe I judge says he’s not responsible for John Doe II

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The presiding judge in what has come to be billed as “John Doe 1,” tells Wisconsin Reporter he had “nothing to do with John Doe II.”

“I wasn’t consulted on whether such a proceeding might or might not be started,” said former Wisconsin Court of Appeals Judge Neal Nettesheim, who oversaw a nearly three-year secret investigation into former aides and associates of Gov. Scott Walker that began when Walker was Milwaukee County executive.

But in an editorial on Monday, the Wall Street Journal asserts “John Doe I” never really ended — it just became absorbed into John Doe II, a nearly two-year investigation into dozens of conservative targets.

According to a sealed court document obtained by the newspaper, Nettesheim authorized Milwaukee County District Attorney John Chisholm to roll all of the information from the first John Doe proceeding, which was supposed to have shut down in March 2013, into a new investigation, “while maintaining all documents under the ‘existing’ secrecy order.”

The Wall Street Journal reports Nettesheim’s order notes that Milwaukee County Assistant District Attorney David Robles “requested that the John Doe Judge permit the use and disclosure of information developed in the course of these proceedings.” It also allows the district attorney’s office to “use and disclose information” from the first Doe “in order to conduct an investigation into the violations that . . . will form the basis of the investigation of a new John Doe proceeding.”

Nettesheim told Wisconsin Reporter that he takes issue with the Wall Street Journal editorial, “to the extent that it suggests that there is some involvement on my part with respect to the present ongoing John Doe.”

“That is incorrect,” the judge said. “I have no role in that proceeding whatsoever. I have no understanding of it … My only involvement was entering an order at the request of the prosecutors, if they saw a need. I authorized the release of that information, and they used it as they saw fit.”

The judge said he presumes it was Judge Barbara Kluka who signed off on the second John Doe. She did, and then suddenly recused herself from the proceeding in October, without explanation. Although Nettesheim wasn’t exactly sure who authorized the probe, he said he had heard that Kluka “ran into some conflict after she had started her duties” on the John Doe.

Kluka disqualified herself, but not before granting the subpoenas and the warrants that led to what sources have described as predawn, “paramilitary-style raids” on the homes of multiple conservative targets throughout Wisconsin.

Nettesheim, it would seem, got to know the prosecutors and the scope of their investigation pretty well over the course of an investigation that, the Wall Street Journal reports, was “enlarged no fewer than 18 times over two and a half years.”

The judge insists he did not know of Chisholm’s intentions related to a second John Doe, or as the Journal put it, “New sign, same bad food.”

That first investigation, which seemed to so seamlessly lead into the second, began after Walker’s office notified the DA about discrepancies in a county veterans fund. It blossomed into a full-on probe into Walker’s staff and 2010 campaign for governor.

In the end, John Doe I was “closed,” after netting six convictions, only two of them related to the original scope of the probe, the theft from the veterans fund.

The second John Doe, built on a theory that some 29 conservative organizations may have illegally coordinated with Walker during the state’s partisan recall campaigns, seemed to have bigger fish to land.

A U.S. District judge has since ordered John Doe II shut down, asserting that the prosecutors’ theory is “simply wrong.” The 7th Circuit U.S. Court of Appeals on Monday upheld the judge’s preliminary injunction and is now wading through the remaining appeals by Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and a contracted investigator. All are being sued in a federal civil rights lawsuit filed by conservative activist Eric O’Keefe and his Wisconsin Club for Growth, targets in the John Doe du jour.

Nettesheim confirmed what sources had earlier told Wisconsin Reporter, that the secrecy order on those involved with the first John Doe probe remains in effect.

The only exception, the judge said, is the document dump requested by the Milwaukee Journal Sentinel, the public record expected to be made public any day. He also turned over to the Court of Appeals thousands of documents and emails from Kelly Rindfleish, the former Walker aide in the county executive’s office who was convicted on campaign charges. Rindfleisch is appealing that ruling.

Violators of the secrecy order, coincidentally, can face jail time.

Why maintain a gag order in an investigation that concluded more than a year ago?

“Because there were promises made to various participants in the John Doe, particularly witnesses’ testimony that I said would remain under the secrecy order,” Nettesheim said. “I feel a sense of duty. Those people cooperated with the John Doe investigation, provided evidence and their testimony. In my judgment, that’s an important promise that I should keep.”

But those same witnesses and targets, some of whom were taken into custody and put in jail before secretly exonerated of any wrongdoing, still cannot tell their side of the story, still cannot defend themselves from the newspaper articles that screamed of their possible guilt.

Nettesheim would not comment on the state of John Doe II, saying he gets his information on the matter like nearly everyone else — through media accounts.

Asked if he felt as though his signature created a prosecutorial monster, as conservative targets suggest, Nettesheim said he would not speak to that.

“The order I signed facilitated access to information to the prosecution, if they saw a need to use it,” the judge said.

Contact M.D. Kittle at mkittle@watchdog.org