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Friday, August 26, 2011

Justice David Prosser: Not a Criminal but More Troubled Than Thought

When a victim has finally had enough of a bully's harassment and decides to stand up, sparks tend to fly. According to the consensus of the statements made by Wisconsin's Supreme Court Justices, Justice David Prosser is a bully whose aggressive and irrational behavior is becoming more troubling. And Justice Ann Walsh Bradley is a frequent victim of his bullying who finally had enough of his misbehavior. The result was a confrontation that led to police investigating Prosser for possible criminal charges and marked a new low for the already troubled court.

As is now becoming clearer, Prosser has a long disturbing history of threatening and harassing his colleagues on the state's highest court. His conduct has gotten so out of control that his colleagues have described feeling intimidated and being forced to "walk on eggshells" because they never know when he's going to explode with anger. His colleagues have described him as becoming increasingly "unstable" and "paranoid."

The court's culture of secrecy, where court staff and the justices themselves adhere to an informal pact to never discuss what happens in chambers has led to a situation where the public knows very little about these elected officials.* But as is made clear from the police reports released today, big business and conservative extremists just bought an emotionally unstable man a seat on the bench where he'll decide the most important issues affecting the state for the next 10 years.

Prosser's disturbing conduct came to the fore when the legislature's Republicans publicly demanded that the court issue a decision related to the highly-charged collective bargaining issue on a timetable set by the legislature's leadership. Prosser, as a former Republican legislator, naturally wanted to please his fellow partisans. Prosser felt so strongly that he and his fellow Republican ideologues confronted the justices in the minority to demand that the court issue an order prematurely so as to appease the public demands of Governor Walker's extremist patsies.

When amidst trying to bully his colleagues Prosser personally insulted the court's Chief Justice, something Prosser has done frequently in the past, this was the final straw for Bradley. She literally rose to the defense of the Chief, standing up from where she was seated behind her desk, and ordered Prosser out of her office. Naturally, in the six different versions of events offered, the fact differ somewhat. But there does seem to be a general consensus:

After Prosser said he had no faith in the Chief Justice's leadership as a result of her refusal to issue a decision on the timeline demanded by Republican legislators, Bradley became upset and came from behind her desk toward Prosser at a pace that was faster than an ordinary stroll. As she approached, she looked him directly in the eye and raised her right arm, pointing towards her office door, instructing him to leave her office. In pointing to the door behind Prosser, her hand was outstretched and at a height of roughly Prosser's face. She likely had her fingers wrapped around her classes and thus her hand appeared to be a fist. At the moment Bradley came within about a foot or two of Prosser, Prosser extended his arms and his thumbs made contact with the front of Bradley's throat and his fingers wrapped around her neck. He did not  squeeze Bradley's neck Immediately, Justice Pat Roggensack intervened between her two fellow justices, ending the confrontation. Prosser left with Gableman. Bradley remained extremely distraught over the incident in the days following.

Having read the reports, I can agree with special prosecutor, Sauk County District Attorney Patricia Barrett, that criminal charges were not warranted against Prosser. But that is certainly not to say that Prosser was "cleared" as he promised he would be. Prosser most definitely behaved inappropriately in this instance and in the many other instances detailed by numerous justices in their statements to police.

But what is also very troubling are the lengths that the court's most junior justices, hardened conservative cronies who have each suffered their own well-publicized ethical lapses, will go to shield the disturbing behavior of their fellow conservative.

Justice Annette Ziegler claims she did not see the relevant events, despite the fact she was standing just to the right of Prosser in the relatively small office. But despite stating that she did not see anything, she nonetheless told investigators, "I know he didn't choke her." One would think a seasoned jurist would recognize the inappropriateness of such a statement. This sort of absurd comment would have been quickly met with, "Objection! Foundation. The witness said she didn't see anything. Ask the response be stricken and the jury instructed to disregard," if uttered in court.

Justice Michael Gableman went out of his way to claim that Prosser never raised his voice and instead spoke in a calm and matter-of-fact tone. The only problem is that Prosser himself admitted raising his voice. In fact, investigators noted Prosser raised his voice even during their interview of him, something that hopefully the public will be able to hear for themselves seeing as the interview with Prosser was audio-recorded and should be considered a public record now that the investigation is closed.

UPDATED, the audio from the over-two-hour interview has been released and is available here. Listening to it is quite amazing. Justice Prosser spends the first 20 minutes babbling about wholly unrelated nonsense apparently in a desperate attempt to defend his outrageous actions or distract (or bore) the investigators. At one point it gets so bad that his own attorney has to jump in and say "get to the point;" it doesn't help. It's a full 40 minutes of Prosser trying to rationalize why he got enraged by referring to long-ago disputes on case management issues before he even starts to approach anything even remotely relevant. But amidst all the nonsense, Prosser does make an outrageous admission--he got the facts he relied upon to make his decision  from newspapers rather than the record produced in court like any jurist must do. Just imagine if a juror decided a defendant's guilt by relying upon what was presented in the media rather than what was presented in court, but apparently that would be fine to Prosser. And although it is patently clear that Prosser is struggling to be on his best behavior, there are hints of the acerbic personality that Prosser's colleagues referenced. For example, he insults the Chief Justice and Justice Bradley for seemingly being surprised to learn that Prosser was writing a concurring opinion. Prosser states, referring the the Chief Justice and Bradley, "I think anyone with any brains would have known I was writing [a concurring opinion]." Prosser raises his voice and becomes agitated at the media's reporting of this incident at 1:15; note, the same media he condemns for being inaccurate in their reporting of this incident is the same media Prosser relied upon to decide this exceptionally important case. Prosser also contradicts himself, at times denying being angry while at at others admitting being angry at the time of the incident. 

Moreover, while nearly all justices made some sort of written personal record of their recollection of the incident soon afterward, Gableman and Ziegler alone refused to provide all of their notes to police. If a suspect in a case that came before the court had refused to turn over certain documents to investigators, do you think these judges would suspect that whatever was contained in these documents was not helpful to that person's position?

Even for those who might agree with or appreciate Prosser's hyper-partisan political loyalty, it should nonetheless be plainly apparent that Prosser is an extremely troubled man whose ability to competently serve the people of Wisconsin is greatly suspect. If he refuses to seek help for his anger issues, then after Scott Walker, Prosser must be next on the recall target list.

* Judicial secrecy is not necessarily a bad thing; it fosters sound and independent decision-making. But when justices forswear that independence and choose to utilize partisan political interests rather than blind justice to decide cases, the need for secrecy is diminished and the public has an interest in knowing the role of improper influences in a judge's decision-making.


  1. "But amidst all the nonsense, Prosser does make an outrageous admission--he got the facts he relied upon to make his decision from newspapers rather than the record produced in court like any jurist must do. Just imagine if a juror decided a defendant's guilt by relying upon what was presented in the media rather than what was presented in court, but apparently that would be fine to Prosser."

    You have got to be kidding. Did you even read the concurring opinion? What was referenced was a preceding case from 2009: Milwaukee Journal Sentinel v. Wisconsin Department of Administration. In no way did Prosser "decide" the case based on "what was presented in the media" instead of a review of the facts and the law. You are in serious error and need to reread the case you linked to and post an update correcting your stupidity.

  2. Are you serious about your assertion?: "Prosser does make an outrageous admission--he got the facts he relied upon to make his decision from newspapers rather than the record produced in court"

    Blogger Emily Mills at Isthmus picked up on this and repeated this erroneous assertion. She calls it "preposterous."

    I'll give you both the benefit of the doubt and chalk it up to poor reading comprehension, failure to fact-check, or even to plain stupidity instead of suspecting you of being willing tools in the efforts to defame David Prosser and destroy his reputation in order to cynically gain political advantage.

  3. It is a basic principle of judicial ethics and a bedrock of the entire justice system that the facts of a case (aside from the very limited exception of matters coming within the ambit of "judicial notice") must come from the record, rather than outside sources. Whether the facts Justice Prosser researched on his own directly influenced his decision is not the issue; simply looking beyond the record in this manner, which Prosser readily admitted during his recorded interview with investigators, is inappropriate.

    And the notion that Prosser did not cite newspapers as the source of the facts presented in his concurrence is obviously inapposite. In fact, Prosser did not cite sources for any of his facts, which is exactly what you would expect when a jurist got his facts from outside the record. One would hope that even an ethically challenged jurist like Prosser would have the common sense to not openly admit his misconduct.