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Does Dane County Sheriff have conflict in Prosser-Bradley Investigation?

Does Dane County Sheriff have conflict in Prosser-Bradley Investigation?

As mentioned yesterday, Dane County Sheriff David Mahoney is leading an investigation into allegations that Justice David Prosser put a “chokehold” on Justice Ann Walsh Bradley, and counter-allegations that Bradley initiated physical contact.

One of the witnesses was Chief Justice Shirley Abrahamson, who has a long history of verbal conflict with Prosser. 

Sheriff Mahoney was a campaign supporter of Abrahamson.  According to Fairly Conservative, a Wisconsin blog, Sheriff Mahoney appeared in a campaign advertisement for her (in the initial still screen shot, and at the 0:18 mark):

Another blog confirmed in 2009 that it was Sheriff Mahoney in the campaign ad, as does someone familiar with Wisconsin politics. (Yes, just before Sheriff Mahoney in the video is Judge Maryann Sumi.)

In such a highly politicized case, does it make sense for Sheriff Mahoney to be leading the investigation, considering that Abrahamson is one of the witnesses?

Even assuming (which I do) that the Sheriff and his staff will do a completely professional investigation, doesn’t the Sheriff’s political connection to Abrahamson raise an appearance of bias problem? Shouldn’t the investigator be someone with no political connection to any of the Justices? 

I e-mailed Shefiff Mahoney last night asking for comment both to confirm his appearance in the video and as to any possible conflict.  I have not heard back, but will update this post if he responds.

(This issue was brought to my attention by commenter Dad29, and by Steve Eggleston)

Update:  Sheriff Mahoney has more political conflicts.  Per JSOnline, he endorsed Prosser’s opponent, JoAnne Kloppenburg and shares the same campaign manager as Kloppenburg.

Update No. 2. Thanks to a reader in Wisconsin for forwarding me this link from The Wisconsin Reporter of a statement issued by Sheriff Mahoney that he will play no personal role in the investigation.


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DINORightMarie | June 28, 2011 at 9:33 am

The answer to your question is: yes, he has a clear conflict of interest, and a bias. You don’t campaign for someone, appear in their commercial, unless you favor that person.

Unless someone in the union-locked police department calls for him to step down, he won’t. This is another one to keep an eye on.

Prosser is being Palinized.

I’m not as trusting as the professor, I guess. I’m assuming he’s already got the “facts” of the case down already and is waiting for his masters in the Democratic Party to tell him when to release them.

Then again, I could be paranoid.

Wisconsin Governor Scott Walker Signs Historic (and Balanced) State Budget

Wait, that doesn’t count. He’s busting our precious parasitic unions, Prosser is part of his regime, Prosser must go!

Sheriff Dupn, umm Maloney, I read somewhere that Prosser broke old lady Schmidt’s window when he was 4 years old and lied about it, maybe you should look into that.

“I have not heard back, but will update this post if he responds.”

Do not reserve any space for his response. I cannot see one coming.

If not the Sheriff, then who? Would we trust anybody from the Holder Dept. of Justice? Or anyone the Chief Justice might appoint? Not likely.

I think we’re going to have to extend a little trust to the Sheriff in this case. He’s got a lot of heat and pressure put on him, perhaps he will take his job seriously.

Trust him? Yeah, that’ll work out well. He stopped being a real, unbiased law enforcement officer long before he ran for sheriff. IMHO this is going to be another “Hold your nose. Those that know ‘better’ are making another move” time.

Actually, I thought I had mentioned it too in comments I made in yesterday’s posting that having Mahoney investigate this incident would be akin to having Nixon investigate Watergate. No matter.
As a long time resident of Madison, there is zero chance that “the Sheriff and his staff will do a completely professional investigation”. The current Dane County Sheriff is a political hack. If you want some semblance of an impartial investigation, then this investigation should be led by John Byron (“J.B.”) Van Hollen, Wisconsin’s Attorney General.

Juba Doobai! | June 28, 2011 at 11:37 am

Yes. Now let’s have the independent special prosecutor (here’s hoping they don’t assign a Democrat. Those folks have no idea what “independent” means.).

Just wow. That campaign ad was for a Supreme Court judge? This shows the chasm between right and left. I want judges who uphold the law regardless of where the chips may fall. Seems the left wants their rich uncle to be the head of the Wisconsin Supreme Court.

To me, the appearance of Dane County Judge Maryann Sumi in the Shirley Abrahamson for Chief Justice ad is really a case of the cherry having outperforming the sundae! I agree that there is simply no legitimate basis for the Sheriff “conducting” the investigation in this matter. But Abrahamson’s conduct is also open to question.

After all, it was Sumi’s bizarre and unconstitutional ruling that became the subject of the recent decision in the Wisconsin Supreme Court case in the first place. Void ab initio was how the majority opinion on Court put it . . . which means that the decision was so bad and so out of line that the Supreme Court of Wisconsin was compelled to completely dismantle the case, and treat it as if it had never happened.

Yet, according to the accounts published so far, it was Abrahamson’s highly questionable suggestion that she might delay the publication of the Supreme Court opinion for a period of time for political reasons (i.e., until after the adoption of the State budget) that set off the whole chain of events resulting in the kerfuffle in Chambers.

How could her suggestion be taken as anything less than a suggestion that she was contemplating what would amount to a judicial coup?

Seems to me that because of Sumi’s open and active participation in Abrahamson’s election campaign, Abrahamson really should have recused herself in that case, perhaps by assigning another Judge to fill in for her, or better yet by asking the Justice next in seniority to assign someone to fill in for her.

And when — per the vote in the case — her view failed, and went against her friend who had appeared in her campaign ads, she then begins to tell the other Justices that she alone may decide to delay issuing the opinion? Obviously for political reasons?

No wonder Prosser got angry. She was literally suggesting a judicial coup.

[…] PROF. JACOBSON: Does Dane County Sheriff have conflict in Prosser-Bradley Investigation? […]

Even MORE:

Schneider is a former denizen of the State Capitol and has very good sources, indeed.

…seems to me that because of Sumi’s open and active participation in Abrahamson’s election campaign, Abrahamson really should have recused herself in that case, perhaps by assigning another Judge to fill in for her, or better yet by asking the Justice next in seniority to assign someone to fill in for her…

But recall that even Abrahamson voted to void Sumi’s action. There was no dissent on the actual question.

    VetHusbandFather in reply to dad29. | June 28, 2011 at 2:33 pm

    She voted to void the Sumi’s action, but that doesn’t mean she had no conflict of interest. It just means she made the right decision in court despite her conflict of interest. Since then we can see that as Trochilus points out, she was still trying to delay the decision. So even though she knew Sumi’s actions held no water in court, she continues to try to cover for Sumi politically.

Related – Christian Schneider outlined what likely happened before, during, and after the incident at National Review. To wit:

– Abrahamson was about to renege on a deal she and Prosser made to issue the Act 10 order on 6/14, as the other 3 members of the majority were prepared to issue the order the prior week.

– Prosser and the other conservative justices went looking for her after hours on 6/13, and they found her in Bradley’s office.

– Prosser, standing just outside the office, argued with Abrahamson over the order timing.

– Bradley came charging out of the office to physically confront Prosser.

– Prosser, in the act of pushing her back, made contact with her neck.

– At the same time, another justice was attempting to pull back…not Prosser, but Bradley.

– On 6/15, after Bradley reported the incident to Capitol Police (which has jurisdictino in the Capitol building), Capitol Police chief Charles Tubbs met with all 7 justices, where Abrahamson re-enacted the incident.

– Nothing further happened until 6/25, when the liberal cabal, including almost certainly one source who did not actually witness the incident, leaked their version to a Soros-funded “media” operation.

Sheriff Dupn, umm Maloney

Sheriff Mahoney

To err is human, to forgive divine to forgive, never happens..

Alexander Pope

I was trapped in thought between mahoney and baloney..

My guess is the Sheriff is tasked with finding a way out of this mess, so that Bradley can keep her seat on the bench. It is unseemly to have a hysterical lying leftist making false charges against other judges on the bench and being exposed.

They’d rather have their hysterical lying leftist judges quietly legislating from the bench.

If not the Sheriff, then who? – georgfelis

It’s not uncommon to have sheriff’s offices from other counties conduct investigations. Happens all the time when a deputy is under investigation and an in-house would be a conflict.

In fact, he could – and probably should – call in the Wisconsin state police/patrol to conduct the investigation. It’s a no-brainer, really.

[…] 2: Bill Jacobson updates that the lead investigator shares a campaign manager with Prosser’s primary opponent […]

If the Christian Schneider NRO published version of events, first linked above by Dad29 and summarized by SteveEgg is essentially accurate, this will continue to devolve into an even more chaotic and embarrassing episode for the State.

In the first place, one wonders what set of circumstances whatsoever that could possibly justify the involvement of the Dane County Sheriff in investigating an incident involving sitting members of the Wisconsin Supreme Court — even if he didn’t have the huge conflict of interest that he clearly has!

Obviously, it is understandable that Charles Tubbs, the head of the Capitol Police quickly realized he was in over his head as a result of having met with the Justices, and observed that at a minimum Justice Bradley was locked into an irreconcilable position with others, and that he therefore immediately sought to “pass it on.”

But the Attorney General’s Office would have been the logical choice — not a County Sheriff! Does a county sheriff in Wisconsin even routinely exercise law enforcement power, such as the filing of minor criminal or quasi-criminal charges?

Or, was the buck passed to Tubbs as a politico who could hopefully help cooler heads prevail, without the need for any sort of formal criminal investigation that might result in the filing of charges?

And even though there have apparently still been no charges filed, once the story leaked and the stage lights went on, he was standing there holding the investigative bag!

If Bradley concluded from the meeting that she could not get support for forcing Prosser into “anger management” and further that she could not muster support for a “restraining order” she should have taken a deep breath and realized the game was up!

But somebody in there flipped on the limelights by leaking to the Soros-funded group.

The election of judges and justices can sure be a slippery slope!

Yes, there is a recognized conflict of interest present in this particular Sheriff being at the top of this particular case. However, that conflict CAN be overcome IF the ENTIRE case-file is made public (statements, investigator’s notes, charging committee hearings, etc…).

IF that is done, I have no particular problems with this sheriff being at the top of the food chain of the investigation because any bias in the data WILL be visible for all to see, and any direct visible bias WILL be used against him in his next election campaign, because “how can we trust someone who plays politics with the rule of law?”

It could be classic. Make him make the choice – he can either run a clean investigation, or he can fall on his sword to protect Bradley (and by extension Abrahamson). My guess is that he’ll run a clean investigation to save his OWN job. (I SO wanted to write “neck” but I thought that would be in bad taste).

From a layman’s perspective, I can only see two reasons not to bow out when you know that a potential conflict of interest exists. The obvious…maybe you’ll get away with it. The other is that you know the outcome will be a win for the opposition, so you can appear objective when your dog loses the fight.

MaggotAtBroadAndWall | June 28, 2011 at 4:00 pm

I’m so fed up with the constant state of protest and dysfunction in Madison when liberals don’t get their way.

I say we reintroduce the duel as a dispute resolution technique for Madisonians.

Does a county sheriff in Wisconsin even routinely exercise law enforcement power, such as the filing of minor criminal or quasi-criminal charges?

Hell, yes. They exercise the same LEO responsibilities as a local cop-shop, and in many cases here, actually ARE the local cop-shop for extremely small towns.

So for criminal investigations, aside from the City cops, the Sheriff is the next level up, and certainly has the staff and expertise.

The Wisconsin Judicial Commission is also investigating the matter and is (arguably) the least ‘partisan’ outfit on the scene.

Another astute observer noted that the “dysfunction” on the Court began when the Left (Shirley Abrahamson, CJ) lost the majority. You can draw your own conclusions about who may be instigating the trouble.

Chuck Skinner | June 28, 2011 at 2:56 pm:

Chuck, with all due respect, I think you are completely missing the point — you certainly missed the main one that I was making, and also any appreciation for the depth of the conflict of interest that the sheriff has in this regard.

My primary point above was that this whole matter raises a serious question of jurisdiction . . . the power to act.

How is it possible that a county sheriff could have the authority to conduct a law enforcement investigation involving sitting members of the State’s Supreme Court?

And given the fact that we now also know that Sheriff Mahoney recently endorsed Joanne Kloppenburg in her election race against Justice Prosser, and that he even shared the same campaign manager she had, how could it remotely be possible for him to be perceived as conducting a fair “investigation” of allegations against Justice Prosser, even if he held the proper office from which to conduct such an investigation?

The County Sheriff is the top LEO in a county. The department’s jurisdiction includes every squaree inch of that county. It does not matter if a town has a police force, the Sheriff and deputies can (although they usually don’t) take over any investigation in that county.

Now in most counties with a population big enough, the Sheriff works the politics, the Chief Deputy controls the department. So the Sheriff works with the County Commissioners, works on the budget and works with the Chief’s of Police in the towns, the State LEOs and any Feds that are either stationed in or passing through the county. Oh, and the media.

Meanwhile, the Chief Dep is a career LEO. Usually fairly apolitical, although certainly aware of the political forces.

I must say that I am shocked at what the LEOs up there were doing during the “occupation” of the Capitol. When I took the oath, some forty years ago, I swore to uphold the law and protect the citizens. Had I acted like those clowns up there I would have been called into the Chief Dep’s Office and then when I left I’d be without my badge and ID and walking funny because of where my privately owned gun and Sam Browne belt had been shoved.

dad29 | June 28, 2011 at 4:23 pm:

Again, setting aside the questions regarding the serious conflicts of interest the sheriff has for the moment, my question is, how is it possible that a county sheriff has the jurisdiction to conduct an investigation of a matter involving sitting members of the Supreme Court?

Why would this not be much more appropriately handled by the investigators with statewide jurisdictional authority from the Attorney General’s Office? Would the county sheriff, for example, be involved in an investigation of a criminal or quasi-criminal matter involving a state cabinet official?

Hi Trochilus

Quote – How is it possible that a county sheriff could have the authority to conduct a law enforcement investigation involving sitting members of the State’s Supreme Court? – End Quote.

As others have mentioned here, Jurisdiction is location specific. A Sheriff has the authority to undertake investigation into ANY criminal activity that occurs within in that specific geographical area. Now he may have a CONCURRENT jurisdiction with the Judicial Review Board AND with the Statewide agency such as the Attorney General’s Office, but that does not lessen the Sheriff’s jurisdiction to complete his own investigation. No other agency displaces him unless the jurisdiction is specifically removed from him by legislation passed by the Legislature and signed by the Governor (and I don’t know of any that does so in Wisconsin).

It’s a throwback to Middle English hierarchy where the Shire reeve was the county’s chief peace officer, custodian of the jail, executor of civil and criminal process and carrier out of Judicial mandate on behalf of the King. This is basically 10th century English Law, where the Sheriff were the head-honcho, and no Law Enforcement Office has displaced that office since.

And I get the conflict of interest. I REALLY do. But if there are concurrent other investigations going on which reach RADICALLY different results, those can be held up if the Sheriff get’s stupid and tries to pull something political with charging Prosser. That’s the point of the “open” records demand. If you can see that the investigators found that Prosser was the victim, and yet he’s being charged, that makes for great theater when the Sheriff comes back up for reelection, and my guess is that the Sheriff isn’t willing to give up his job to try to save Bradley or hurt Prosser now that Prosser’s been reelected, regardless of Mahoney’s previous or current political leanings. Think of it this way: it’s ALL about bringing the bias into the light. You do that, and the cockroaches will scurry to get out of the light lest they be squashed by the public foot in disgust.

Chuck’s right.

Speculation here is that CJ Shirley (the Screech) will try to sweep this under the rug no matter WHAT the investigation reveals. There will be posed holy pictures, kiss/make up BS, and … get the idea.

Reason? The investigation will reveal that, indeed, Bradley ASSAULTED Prosser and that his move was pure self-defense.

That means that Bradley, the CJ’s Mini-Me, will be forced to resign after the criminal assault trial jury finds her guilty–if not because she was shamed out of the office.

So, no matter the inclinations of the Sheriff, this will go away.

OR (and this is still a very strong possibility) the Legislature will impeach Bradley based on the Sheriff’s report, no matter whether it’s referred for prosecution or not.

I understand the history, and in a number of states (e.g., here in NJ) things have changed with respect to the authority of a county sheriff.

No county sheriff in NJ, including the Mercer county Sheriff (where the State capitol in Trenton is located) would ever attempt to do anything like assert investigatory jurisdiction in a case arising within the chambers of the Supreme Court.

I didn’t know what the situation was in WI, which was why I asked. But there is something odd about the decision on the part of Tubbs to defer to Mahoney after he (Tubbs) had met with the members of the Court.

What just seems odd to me was to bring in a county-level politico to conduct an “investigation.”

The CODE OF JUDICIAL CONDUCT governs the conduct of judges and justices in Wisconsin, and there are a few general requirements as follows:

SCR 60.03 A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
. . .

SCR 60.04(3)(a)
(a) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this chapter should take appropriate action. A judge having personal knowledge that another judge has committed a violation of this chapter that raises a substantial question as to the other judge’s fitness for office shall inform the appropriate authority.

But it does not provide more detail as to what “appropriate authority” might mean in the context of enlisting any law enforcement investigative authority, as by definition it means only the following in the Code:

SCR 60.01(1)
(1) “Appropriate authority” means the chief judge of an offending judge’s district, the director of state courts, the judicial commission, and the office of lawyer regulation.

Carol Herman | June 28, 2011 at 11:29 pm

A yelling match doesn’t qualify. Someone posted (elsewhere) that Hugo Black went and hit Felix Frankfurter while the US Supreme Court was in session. Frankfurter probably deserved the smack down.

Here? A suspect that abrahamson thought if she called this story into friendly journalists she’d ruin Prosser’s career. No such thing happened. As a matter of fact, just the opposite.

As to the ad agency that did the ad for abrahamson, I bet they don’t come forward and ask to be identified. It won’t be on any resume addressed to other politicians in the “hire me” vein. “I have experience” department.

Prosser just has to keep writing his decision opinions in ways that are solid. How abrahamson, bradley and sumi, ignored this truth is just beyond comprehension. But you could teach this just for comical effect, no?

I am sooooooo glad I don’t live in WI. A poisoned well and has been that way for over a hundred years.