By Mike McCabe, Executive Director
January 24, 2005
Madison - Your average citizen can be forgiven for forgetting about the corruption scandal at the Capitol. You know, criminal charges against six of the most powerful politicians in Wisconsin. Some four-dozen felony counts. Extortion, money laundering, bid rigging, illegal campaigning, that kind of thing.
Memorable stuff. But the investigation that led to the indictments is more than three years old. Most of the charges were filed well over two years ago. The most recent indictment – conspiracy charges handed down a year ago by a federal grand jury against ex-senator Gary George – was ironically the first and only one to yield anything so far. George was convicted and sentenced to four years in federal prison for taking kickbacks and misusing his legislative staff.
The other legislators are up on state charges and have successfully stalled their trials by filing one pre-trial appeal after another. It’s unconventional but not entirely surprising that they filed appeals, but it’s highly unusual for higher courts to agree to hear them before the cases go to trial, to hear top criminal defense attorneys tell it.
Prominent Madison defense attorney Stephen Hurley told the media that during his lengthy career, he has asked an appeals court to hear a case before trial in "maybe 1 percent of cases." He says the number of pre-trial appeals actually heard by higher courts is "infinitesimal."
Indeed, of the 60 other felony cases brought into Dane County court on the days the legislators made their initial court appearances, all but one were completely resolved more than six months ago. The only exception was a case involving a man who was not located and arrested until May.
There’s a good reason why pre-trial appeals are so rare – they favor the defendant. This favored treatment has been extended to five politicians who held the most powerful leadership posts in the Legislature until the corruption scandal derailed their careers – ex-Senators Chuck Chvala and Brian Burke, current Assemblyman Scott Jensen and former Representatives Steve Foti and Bonnie Ladwig – as well as former Foti aide Sherry Schultz.
After a Dane County circuit court ruled in early 2003 that the charges were valid and the prosecution could proceed, the state Court of Appeals agreed to hear the cases. The appeals court reviewed the lower court rulings for well over a year before finally ruling that the charges should stand. Appeals to the state Supreme Court followed, and the state’s highest court agreed to hear them despite being mired in conflicts of interest because of political ties to the legislators and their attorneys. A ruling is due sometime this year.
The seven-member Supreme Court barely had a quorum as it decided to hear the cases. Wisconsin law requires judges to remove themselves from cases when they cannot act in an impartial manner or it appears they cannot. Three justices had conflicts of interest serious enough to cause them to recuse themselves.
A fourth – Justice Patrick Crooks – is hearing the cases despite close political connections to Jensen. The former speaker served as Crooks' campaign manager in 1995 and 1996 and Crooks also received thousands of dollars in campaign contributions from Jensen’s campaign committees. The justice’s campaign finance reports list payments of nearly $27,000 to a firm run by Jensen’s wife for campaign work.
By giving Jensen and the others the extraordinary privilege of a pre-trial appeal, the Supreme Court already has helped create the impression that there are two systems of justice in Wisconsin – one for the powerful and well-connected and another for average citizens.
Then when the high court finally gets around to ruling on the appeals, the justices will be horribly compromised in their ability to impartially rule on these corruption cases, thanks to their political relationships with the accused.
The necessary checks and balances provided by the separation of powers between the branches of government break down when the judicial branch becomes too cozy with the legislative branch. And there is no cozier political relationship than that between a candidate and his campaign manager.
The spectacle of a hopelessly conflicted court ruling on political corruption charges against close political associates can do nothing but undermine public confidence in the impartiality of the judiciary. It is hard to imagine a much better illustration of the need for judicial reform.
Legislation known as the Impartial Justice bill – creating a system of public financing of state Supreme Court election campaigns – has been proposed in past legislative sessions. The measure would restore judicial independence by cutting the umbilical cord that runs from legislative leaders and their special interest sponsors to Supreme Court candidates. Time and again, the Impartial Justice bill was stonewalled by legislative leaders. Now it’s finally becoming clear why.