Tense Hearing on Evidence From Doe Probes

MILWAUKEE (CN) — Tempers flared in a Wisconsin courtroom Wednesday as investigators try to preserve evidence from a dying probe of conservative state officials.

Milwaukee District Attorney John Chisholm acquired the evidence at issue as part of the so-called John Doe investigation into possible violations of campaign-finance law in Gov. Scott Walker's 2012 recall election.

Shortly after Walker aide Cindy Archer brought a civil rights lawsuit last year over the search she faced, the Wisconsin Supreme Court ended the John Doe investigation as unconstitutional.

The battle is one drawn on heavily partisan lines. In addition to controlling the governor's office and both chambers of the Wisconsin Legislature, Republicans also dominate the state Supreme Court, which ordered the Democratic Chisolm to have all 6 million documents obtained from the John Doe investigations destroyed or brought to the high court under seal.

Setting the stage for Wednesday's hearing, Chisolm's investigators say evidence preservation is necessary to defend themselves against Archer's civil claims.

While Archer claims that investigators ransacked her home, and threw the warrant at her without reading it, audio of the raid has contradicted this story. It captures an investigator letting Archer have coffee and a cigarette during the search, after he has read her the warrant and her Miranda rights.

Archer's attorney, David Rivkin Jr., meanwhile argued Wednesday that the court has no authority over the documents.

An attorney with Washington-based BakerHostetler, Rivkin used the analogy of items obtained during an illegal office break-in. Because Chisholm's investigation has been found unconstitutional, Rivkin said the Archer search is not admissible in court.

The argument produced shouts from Judge Lynn Adelman.

"I don't care if they are legal or illegal," Adelman barked. "I don't care if they're lawful or unlawful."

Earlier in the hearing, Adelman told Rivkin: "I'm trying to solve an evidentiary issue, and you're really not helping me."

Discussing the case in a phone interview Thursday, Rivkin called it "quite frankly, bizarre, both as a matter of law and common sense," for Chisolm to have the documents preserved.

"It's risible," Rivkin added. "It shows complete hubris on the part of the defendants, though not surprising given their past behavior."

Adelman has asked at the hearing whether Archer's team could ask the Wisconsin Supreme Court for an equitable solution on defense access to the documents.

But Chisolm's attorney Samuel Leib scoffed at the idea.

"They'll never do it, Judge," said Leib, an attorney with Wilson Elser Moskowitz Edelman & Dicker. "They don't want to be fair about this."

Leib's co-counsel Douglas Knott said they have asked the state Supreme Court three times for continuing limited access to the documents.

The court has refused, claiming there is a chance they may be used improperly.

Archer's attorneys have meanwhile lobbed their own claims of impropriety.

Alleging that Chisolm's investigators misrepresented documents they put forward in the John Doe proceedings, Archer's team has said Judge Neal Nettesheim "rubber stamped" search warrants and other documents without reading them.

"That is a serious allegation, and we expect to prove it," Rivkin said, citing records that show Nettesheim was working on another case when he purportedly approved the search warrants.

"He did not work a single minute on the John Doe matter," Rivkin said.

It is unclear when and how Adelman will rule on the motions.

Leib declined to comment after the hearing, except to say that he had expected a request for a proposed order, which the judge did not issue.

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