Recently, whether by coincidence or coordination, this state has seen an increase in public comment impugning the propriety, motives and competence of a John Doe investigation in Milwaukee County.
Some of that comment has been directed at the office of the Milwaukee County District Attorney, and some at John Chisholm personally. Because this John Doe investigation, like all such investigations, is under the control of a judge, some of that comment also has been directed at an experienced and capable judge, the Hon. Neal P. Nettesheim, who is conducting and overseeing that investigation.
As people who have devoted much of our lives to the prosecutorial function, judicial function, or both, and more importantly who have strived to support the rule of law, we think it important to speak.
We understand that political passions are high at this time in Wisconsin’s history. But we also understand that such times are exactly when the dispassionate rule of law is most essential. This nation and this state depend upon independent prosecutors who have the courage, objectivity and discipline to follow the evidence wherever it may lead, proceeding deliberately and cautiously all the while.
Likewise, the nation and the state depend upon an independent judiciary to administer justice impartially, objectively, and honestly. The Milwaukee County District Attorney, his office, and Judge Nettesheim consistently have acted in exactly these traditions. They have done nothing to shake or betray our confidence in them and in the independence of their work.
There is no evidence that anyone associated with the prosecutorial, investigative and judicial functions of this John Doe inquiry has violated the secrecy order in that inquiry or otherwise acted contrary to law or good conscience. There is no evidence of partiality or bias. There is no evidence of incompetence, undue delay or improper motive. All evidence known to us is to the contrary.
We agree with Gov. Scott Walker, who has said publicly that he has seen no reason to question the fairness of the John Doe investigation.
Indeed, this John Doe investigation, and the prosecutions that have resulted from it, are solid examples of the rule of law, rather than the rule of the crowd, the rule of the powerful, or even the rule of transient public sentiment.
The rule of law has done much to maintain the legitimacy and stability of our political institutions since this nation’s founding. The people who have been charged but not convicted are presumed innocent, as they must be. Those who may be uncharged targets or subjects of the investigation have maintained anonymity and the presumption of absolute innocence to the full extent that both the Milwaukee County District Attorney’s Office and the supervising judge have been able to assure that.
Neither a judge nor a prosecutor can stop speculation by media or the public, though. In a free society, they should not and cannot have that power. But they also must not bear the blame for the political passions, speculation and commentary that they have done nothing to fan or to feed. Instead, all Wisconsinites who believe in the rule of law and in the importance of fair and independent prosecutorial and judicial functions should be proud of Mr. Chisholm, his office, and Judge Nettesheim.
They are public servants in the finest and highest sense.
Hon. Janine P. Geske, retired justice, Wisconsin Supreme Court; Hon. Patricia D. McMahon, retired judge, Milwaukee County Circuit Court; Hon. Mark A. Frankel, retired judge; Dane County Circuit Court; E. Michael McCann, retired district attorney, Milwaukee County; Robert J. Jambois, former district attorney, Kenosha County; Gregory J. O’Meara, S.J., former assistant district attorney, Milwaukee County, and associate professor, Marquette University Law School; and Ben Kempinen, clinical professor and director, Prosecution Clinic at the University of Wisconsin Law School contributed to this opinion.