May 31, 2012

Scott Walker's famous emails

Here's an interesting item:
"Typically, a secrecy order covers questions asked, answers given, transcripts of the proceedings, exhibits produced during the proceedings, or other matters observed or heard in the secret session at a John Doe proceeding," according to an article on the Wisconsin Bar Association website by Marcus J. Berghahn, a criminal defense attorney with experience in such cases.
Huh. "Typically"?
[I]f the [John Doe] proceeding is secret, the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney ...
Call me a strict constructionist/judicial conservative but I don't see anything in there about "exhibits produced during the proceedings."

Exhibits aren't testimony. Similarly it's been argued that 'typically' the Wis. Supreme Court appoints a three-judge panel to hear judicial discipline cases. That practice is unauthorized by State statute as well.

Indeed, it's directly contrary to State statutes. Not to come over all philosophical, but what is the point of having statutes? Would it work better if we wrote them in a language unfamiliar to English speakers?

Semi-serious question.


Display Name said...

If "would it work better" means more billable hours for the increased number of translators of the Law to the vulgate, then yes, it would be good for attorneys.

Anonymous said...

I get your point, but in your interpretation, what does "the record of the proceeding" mean? "Record" may have multiple meanings, but one of them does include a compilation of all material filed in the case, including the exhibits that are accepted into evidence.

illusory tenant said...

Well it's not a trial, although I suppose a judge might interpret 'record' here as being something similar to a trial record. But the WisBar article refers to exhibits "produced" during the proceeding. Even at trial it's not enough to produce exhibits, they have to be admitted to the record, their evidentiary foundation laid, withstand objections according to the rules of evidence, etc.

In the John Doe proceeding a party testifying may only have her attorney present; her attorney doesn't participate to the extent the attorney may at trial. The attorney may not even argue before the judge, which presumably includes the attorney's being precluded from objecting to the admission into the record of these exhibits "produced" at the proceeding.

That's an awful lot of judicial discretion and very little due process.