Kelly Rindfleisch will fight on in Fourth Amendment case

Part 146 of 145 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Kelly Rindfleisch says she’s disappointed but determined to fight on after a state appeals court on Wednesday upheld her conviction as part of a politically charged John Doe investigation into former aides and associates of Gov. Scott Walker, then the Milwaukee County executive.

“I’m obviously disappointed in the majority ruling,” Rindfleisch, Walker’s chief of staff in 2010, said in an exclusive interview Thursday with Wisconsin Reporter. “Judge (Ralph Adam) Fine makes it very clear in his (dissenting argument) that this is a violation of the Fourth Amendment and that if not remedied will have very damaging consequences.”

“People still refuse to hear the facts of the case,” she added. “Anyone who is actually concerned about Fourth Amendment rights needs to read Judge Fine’s dissent.”

FIGHTING ON: Kelly Rindfleisch is taking her Fourth Amendment case to the Wisconsin Supreme Court after a lower court rejected her appeal and upheld her conviction stemming from the politically charged John Doe investigation.

It’s been two years since Rindfleisch asked the District 1 Court of Appeals in Milwaukee to overturn her conviction. A three-judge panel of the court split 2-to-1 to reject Rindfleisch’s motion.

Rindfleisch in 2012 was sentenced to six months in jail and two years’ probation after she said she was essentially forced by a Milwaukee County judge to plead guilty to a felony count on the nebulous charge of misconduct in public office.

She originally faced multiple charges for responding to emails regarding fundraising on behalf of failed lieutenant governor candidate Brett Davis in 2010. She was on the government clock when she sent those communications, working as an aide Walker when Walker was Milwaukee County executive.

But prosecutors wanted to up the ante and make Rindfleisch an example in the politically charged “John Doe” investigation, which, after nearly three years, ended with six convictions, four of which had nothing to do with the original scope of the probe.

Saying she took the best deal she could get at the time, Rindfleisch now says it came back to haunt her. She immediately appealed her conviction, asserting prosecutors grossly violated her Fourth Amendment rights.

The court’s majority shrugged off Rindfleisch’s charge that prosecutors in the secret John Doe investigation employed “unfiltered,” sweeping warrants to root through her emails and other digital communications over a nearly two-year period between early 2009 and late 2010.

“Rindfleisch has failed to present any evidence at any time during these proceedings that tends to suggest that her Fourth Amendment rights were violated by the seizure authorized in these warrants,” the ruling states.

Fine disagreed, arguing that the majority’s ruling substantiates the use of general warrants and “nullifies our Constitution.”

“The essence of our country is ‘that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument,” Fine wrote, quoting from the landmark early U.S. Supreme Court case, Marbury v. Madison. “Simply put, we are governed by our Constitution, not expediency.”

Rindfleisch’s legal counsel, veteran Milwaukee attorney and former federal prosecutor Franklyn Gimbel, said his client will appeal the case to the state Supreme Court.

“I think the majority of judges missed the point of our argument entirely,” Gimbel said of the appeals court panel. “I’m hoping the folks in Madison (the Supreme Court) will be able to see the issues in this case have enormous consequences down the road in respect to gathering of cyber information without any kind of filtering device,” or outside observers reviewing evidence collected from such seizures.

Gimbel said the petition before the Supreme Court, due by December 12, is ripe for review. He said the appeals court’s majority effectively has ruled that prosecutors may gather digital communications without identifying what they are looking for, a concern at the core of the Fourth Amendment.

The search and seizure of thousands of Rindfleisch’s documents not only brought to the public eye the conduct in question but multiple examples of private communications that are supposed to be protected, Gimbel said. A judge earlier this year released tens of thousands of emails obtained from Rindfleisch’s electronic equipment in the lengthy John Doe investigation, led by the office of Milwaukee County District Attorney John Chisholm, a Democrat, into individuals surrounding Walker, a Republican candidate for governor at the time.

Gimbel said it does not matter whether law enforcement officers ultimately found incriminating evidence of misconduct by Rindfleisch. Their sweeping search, described by critics as nothing more than a partisan witch hunt, should not be allowed under the U.S. Constitution, the attorney said.

“When you look at the way police behave, guilt and innocence is something that can’t be put into play in the game,” Gimbel said. “The U.S. Supreme Court has long ago said that the only effective remedy against law enforcement (who do not act in good faith) is to take away from them the ability to use the fruits of their illegal activities.”

In short, the evidence drawn from the search warrant should be suppressed, as Rindfleisch had asked the original court to do.

“If the prosecutors think they can make a case against Kelly using the fruit of their poisonous tree, let them go ahead. I will defend that case,” Gimbel said. “I spent five years as a federal prosecutor when the Supreme Court was articulating all of these concepts of controlling the abuses of government.”

Earlier this year, a U.S. Supreme Court decision, Riley v. California, declared digital is different, that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”

The unanimous decision, billed by constitutional law observers as one of the more significant Fourth Amendment rulings to date, could have major implications on investigative data-grabbing cases — from shady-looking characters talking on cellphones all the way up to the NSA’s bulk collection of telephone metadata.

During oral arguments in September, Christopher Wren, an assistant attorney general with the Wisconsin Department of Justice’s Criminal Appeals Unit, countered that prosecutors were well within their rights to seek an affidavit in support of a search warrant to seize the emails from Rindfleisch’s Google and Yahoo accounts, as well as the emails of others eventually charged in the investigation. The Internet service providers turned over more than 16,000 email pages, or slightly more than 32 reams of standard 8.5-inch by 11-inch paper, according to court documents.

Wren disputed Gimbel’s claims that the prosecutors effectively employed a general, overly broad search warrant.

But there’s irony in the fact that the prosecutors began their wide-ranging probe miles from Rindfleisch – with Timothy Russell, whom the Walker administration suspected of wrongdoing in his management of a Milwaukee County veterans fund.

In finding Rindfleisch’s appeal, Wren reiterated what he had previously written in court briefs, that prosecutors of the secret John Doe investigation into Walker’s former aides and associates pursued Rindfleisch after a search of Russell’s computer and other electronic devices. Russell was sentenced in early 2013 to two years in prison and five years probation for pilfering $21,000 from the county veterans fund Walker tapped him to direct.

“Based on a review of those e-mails Investigator (David) Budde had ‘reason to believe that … (Rindfleisch) was active in fundraising in the County Executive’s Office …,’” wrote Wren in a 65-page brief filed in April. Wren is defending the John Doe prosecutors and Milwaukee County Circuit Judge David Hansher, who sentenced Rindfleisch in November 2012 and rejected her motion to suppress evidence obtained in the searches.

Rindfleisch said no government entity should be able to sift through a private citizen’s digital files without probable cause, and the John Doe prosecutors did not have probable cause in her case.

“What was done to me is the equivalent of cops coming into your house because they suspect a friend of yours had maybe committed a crime even though they have no real evidence of it and tearing your house down to the floorboards,” she told Wisconsin Reporter. “They are rifling through your most private things. And nothing is off-limits. Then they take everything and put it in your front yard and tell the world they are free to come and rifle through it themselves because you are a criminal.”

In fact, it was Judge Patricia Curley, one of the two appeals court judges rejecting Rindfleisch’s Fourth Amendment claims, who ordered the thousands of Rindfleisch emails be made public. Rindfleisch requested that the documents, the vast majority of which had nothing to do with the prosecutors’ case, remain sealed.

Judge Joan F. Kessler wrote Wednesday’s decision. She is the wife of state Rep. Fred Kessler, D-Milwaukee, one of the left’s more outspoken critics of Walker.

Rindfleisch said she will continue to fight because, “I’m starting to feel like this is all bigger than me. If I don’t fight, this will happen to other people, both Republican and Democrat.”

“I hope that the Supreme Court has enough respect for the Constitution that they will put a stop to this happening to someone else,” she said.