Judges-Gone-Wild, Part II: The Supreme Court Version

Yours truly with Justice David Prosser in 1999.

Judicial shenanigans aren’t limited to circuit court judges; even our lofty Wisconsin supreme court justices have jumped into the act.  While The Dog was on hiatus, journalists reported that Justice David Prosser and Justice Ann Walsh Bradley engaged in a heated debate that, by all accounts, turned physical.  Some who witnessed the throw-down said that Prosser aggressively put his hands around Bradley’s neck, while others reported that Bradley first charged Prosser, causing him to react.  In any case, I have no intention of rehashing what did or didn’t happen, or even discussing the negative effect this incident had on an already battered judiciary.  (The Trial Lawyer magazine [Fall, 2011] has already captured the popular view of this incident: “[Prosser is] certainly a hero to all of the shirtless, beer-swilling, wife-beating men living in trailers across America.  Maybe they too can be elected to Wisconsin’s high court!”)  Instead, what caught my eye were some post-incident acts and comments by the justices that call into question their basic knowledge of the law.

Let’s begin with Prosser.  When a television reporter approached him to ask for his version of the events, Prosser rather aggressively grabbed the reporter’s microphone out of his hand, only to shove it right back at him.  Aside from the obviously counter-productive nature of this behavior, Prosser’s actions were especially dangerous as the prosecutor’s office was considering filing criminal charges against him at that time.  Why was his behavior dangerous?  Because, as Prosser should know due to his previous legal decisions, prosecutors can use these “other acts”—acts that are completely unrelated to the alleged crime—against a defendant in his criminal trial.  All the prosecutor would have to do is to offer Prosser’s “other act” for a pretextual reason, and then he could use it for its real purpose: to prove to the jury that Prosser is short-tempered and easily driven to physical action, thus making it more likely than not that he put his hands on Bradley’s neck when their debate got heated. 

And, as Prosser should also know, his failure to answer the journalist’s question about what happened—again, see the video—could also be used against him at trial.  How?  Prosecutors routinely use this particular type of silence (as opposed to post-Miranda silence) to impeach defendants should they choose to testify in their own defense.  In other words, if Prosser were charged with a crime and testified that he acted reflexively, rather than intentionally, the prosecutor could cross-examine him as follows: “So, today you come up with this story about acting reflexively, but when a reporter asked for your version of events several months ago, you had nothing to say, isn’t that right?”

Prosser blew it, and he was bailed out by the prosecutor’s decision not to prosecute.  As he knows, prosecutors frequently charge people with serious crimes, without any physical evidence at all, on far weaker allegations than those made by Justice Bradley.  (See Chapter 26 of my first published book for more details on this phenomenon.)  In short, Prosser is extremely fortunate to have avoided the wrath of the prosecutors to whom he gives so much power through his court decisions.  (Should his luck run out in the future, however, a final tip: don't argue that you were provoked, as you claimed here regarding a previous verbal exchange with another fellow justice.)   

And what about Justice Bradley?  When interviewed, she claimed that “I contacted law enforcement the very night the incident happened but did not request criminal prosecution.  Rather I sought law enforcement's assistance to try to have the entire court address informally this workplace safety issue that has progressed over the years.”

As much as I appreciate some of Justice Bradley’s dissents in Wisconsin supreme court criminal cases—hint to all justices: side with Chief Justice Shirley Abrahamson and you'll be in good company—Bradley is either ignorant of criminal procedure or she is being less than truthful.  Does she seriously believe that police officers can bring anything to the table in working out an informal resolution among a group of grownups, each with at least seven years of college and professional school education?  And even if the police had something to offer, does she seriously believe that she, as the alleged victim, can dictate whether they initiate criminal prosecution?  In situations like this, the police are there to investigate crimes and refer them to the prosecutor’s office for charges, period.  And at the risk of engaging in now excessive self-promotion, Justice Bradley should have read Chapter 20 of my first book, which explains that private citizens cannot decide whether to “press charges.”  Instead, once the police are summoned, no one can tell them what to do or whom they should—or shouldn’t—refer to the prosecutor for criminal charges.

That leaves us in a sad state of affairs, indeed.  But at least no one looks at judges or supreme court justices as role models; for those so inclined, they still have professional athletes to emulate.