MADISON, Wis. (CN) – Overturning two lower court decisions, Wisconsin’s conservative high court ruled the state has a right to keep training videos made by its Republican attorney general concealed from the public.
Though all parties in the case are said to agree that training videos from a prosecutors’ conference show no misconduct by Republican Attorney General Brad Schimel, the Democratic Party of Wisconsin kept up its cry that state public records law requires disclosure of the tapes.
The case was initiated before Schimel’s election in 2014. The Democrats claimed the videos showed Schimel making "offensive racial remarks and ethnic slurs, including but not limited to stereotyped accents, as well as sexist remarks," according to court documents.
The recordings in question come from training sessions of state prosecutors led by Schimel while the Republican was serving as Waukesha County district attorney. Schimel became Wisconsin attorney general after defeating Susan Happ, a Democrat who focused heavily on women's issues during her campaign, in the November 2014 election.
When the court of appeals agreed with the district court, the state Department of Justice took the appeal to the Wisconsin Supreme Court, which solidified its 5-2 conservative majority when Judge Rebecca Bradley, who authored Wednesday’s opinion, was elected at the same time as Schimel.
“The two videos requested here do not contain any evidence of official misconduct. The circuit court, the court of appeals, this court, and the Democratic Party all agree on this point,” Bradley wrote in the 27-page majority opinion.
But what really weighs in favor of making an exception to the state’s robust public records law is the advantage the first video, recorded in 2009, could give potential criminals, who could view the videos and learn how to avoid prosecution, Bradley wrote.
The judge slammed the Democrats and the circuit court’s “flawed and erroneous” reasoning that the video did not contain any “novel” strategies that are not discussed on crime television shows.
“This video is replete with police and prosecutor tactics, specific instances of cases with descriptive details, and practical strategies to gather evidence,” Bradley wrote.
As to the second video, recorded in 2013, Bradley cited the reference to several sexual assault victims who were children at the time of the crimes.
Though Schimel does not mention any by name, Bradley says release of the video discussing the specifics of the case would enable people to identify the victims, which would traumatize them again.
Further, the information is protected by the common law exception for prosecutorial files, Bradley wrote. Disclosure would discourage victims from coming forward to report crimes in the future for fear of an invasion of their privacy.
While Bradley pointed out that the context of the records request implies it was intended to influence an election, Justice Shirley Abrahamson began her dissent by pointing out Schimel’s conflict of interest: as custodian and subject of the records in question, he has the power to prevent release of personally damaging information.
Abrahamson, joined as usual in her 30-page dissent by fellow liberal Justice Ann Walsh Bradley, recommended remanding the videos to the district court to make limited redactions and release the videos, an alternative proposed by the Department of Justice. Abrahamson also contested Bradley’s assertion that the parties agree the video shows no misconduct.
“No such agreement about offensive comments appears in the record,” Abrahamson wrote. “Offensive comments, if any, are not an issue before this court.”
Abrahamson continued, “The question for me is: What has the majority achieved with its opinion grounded in speculative, abstract, and unsubstantiated fears? The answer for me is: A dimming of the light on public oversight of government, especially in matters pertaining to criminal justice.”
Johnny Koremenos, spokesperson for the Department of Justice, emailed a statement Wednesday attributed to Schimel.
“Even though I would have benefited politically from the release of these law enforcement training tapes, I believe the court made the right decision in this case, to protect victims and guard the confidentiality of prosecutorial techniques,” the statement reads.
An email to the Democratic Party of Wisconsin requesting comment was not returned Thursday.
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