About Those John Doe “Paramilitary Raids”
Are right-wing accounts of the Doe investigation fictional?
Ever since several editorials appeared in the Wall Street Journal, conservative media have promoted a standard model for how the John Doe of Gov. Scott Walker and conservative advocacy groups was conducted. The investigation searches were typically described as “para-military style,” involving shouting, threats, and the denial of common courtesies. They also typically described the lead investigator refusing a request for a lawyer and failing to read the poor victim their Miranda decision rights.
Here is how the National Review article described the search of Cindy Archer’s Madison home (Wisconsin’s Shame: ‘I Thought It Was a Home Invasion’):
The officer or agent in charge demanded that Cindy sit on the couch, but she wanted to get up and get a cup of coffee. “I told him this was my house and I could do what I wanted.” Wrong thing to say. “This made the agent in charge furious. He towered over me with his finger in my face and yelled like a drill sergeant that I either do it his way or he would handcuff me.”……. They wouldn’t let her speak to a lawyer. …the police searched her house, making a mess, and — according to Cindy — leaving her “dead mother’s belongings strewn across the basement floor in a most disrespectful way.
The same article also describes two other searches very similarly, again claiming that those residents — who are unnamed — weren’t allowed to contact a lawyer.
Here is how George Will describes the searches (A liberal DA’s cynical use of Wisconsin’s “John Doe” process may cost Scott Walker the election):
The early-morning paramilitary-style raids on citizens’ homes were conducted by law-enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children’s, were ransacked, cell phones were confiscated, and the citizens were told it would be a crime to tell anyone of the raids.
Here is a very similar description from the National Review’s editor, repeating many of the same claims, including that the subjects weren’t allowed to contact an attorney: Politicized Prosecution Run Amok in Wisconsin). There are scads of others but the similarities between ostensibly different searches suggest they all stem from the same source.
The right-wing blog Watchdog.org has published numerous similar stories. It does name a source, Eric O’Keefe, of the Wisconsin Club for Growth and the lead plaintiff in its lawsuit against the investigation. He claimed to have interviewed many of the subjects of the searches. It appears that O’Keefe himself was not present at any of the searches. Certainly he cannot be considered an unbiased source.
These search stories have been accepted uncritically by much of the right despite any corroborating evidence. From a legal perspective they would be considered hearsay. They also lack the scholarly imperative of using primary sources. Because of the various secrecy orders there has been no way to check them—at least until recently.
Yet even without any way to check them, these tales lack credibility. All have the same elements: including a brutish investigator who shouts, issues threats, gives gratuitous orders, and ignores common courtesies. Most significantly, these searches are conducted illegally, refusing requests for a lawyer and not bothering to read the warrant or the Miranda warning.
There are least two reasons to doubt this description. Such behavior would likely be counter-productive in gaining the cooperation of the person being interviewed. Perhaps even more importantly it would make any testimony inadmissible in court. I would suggest that the thugs who populate these tales are incompetent investigators.
By contrast, effective investigators work to build empathy. They sympathize with how uncomfortable the situation must be for the person being interviewed. They try to make the situation as unthreatening as possible. They are dangerous precisely because they avoid acting like the brutish investigator in the stories and instead enlist the help of the people being interviewed. Only later does the interviewee realize he or she may have said too much.
Which investigator actually conducted the searches, the thug portrayed in the right-wing media or the one I suggest would be more effective? The recent release of documents from Archer’s lawsuit against members of the Milwaukee DA’s office for the first time offers a primary source for what transpired in one of the searches.
Let’s start with the story Archer’s attorneys offer in her filing:
- “When Archer opened the door, officers and others flooded in, throwing the warrant at her without giving her an opportunity to read it.”
- “They attempted to seize her partner’s computer and cell phone despite having no authority in the warrant to seize her possessions.”
- “Archer reached for her cigarettes, and the officers screamed at her and forbade her from leaving the residence, even for a brief period to smoke a cigarette.”
- “No one informed her that she had a constitutional right to remain silent and the right to an attorney.”
- “They left items Archer inherited from her mother strewn about the basement floor after emptying a cabinet. They left messes in other cabinets.”
In other words, the complaint offers a story totally consistent with the tales published in the right-wing media.
But as part of their defense against Archer’s lawsuit, two Milwaukee DA employees submitted an audio tape made during the search. The interviewer on the tape, Aaron Weiss of the Milwaukee DA’s office, bears no no similarity to the thuggish investigator profiled in the complaint or the National Review article.
There is no shouting or threats. After some small talk Weiss suggests she “grab a seat and I will read you this warrant,” which he proceeds to do in a clear but hardly threatening voice. He reads the secrecy order, which clearly makes an exception for her lawyer. He summarizes what will happen next and that she is not under arrest and will be free to go about her business at the end.
When Archer asks to step outside to smoke a cigarette, Weiss agrees, but says he has to accompany her—suggesting that might be overkill, but “cops are trained to be paranoid.” He explains that her computers and cell phone will be returned as soon as possible but he can’t predict exactly when. He offers the comment that the situation must be uncomfortable for her. After some consideration, he agrees to a request that he not take Archer’s partner’s cell phone. There is considerable small talk which seems aimed at putting her at ease.
When she suggests they sit on the couch, he responds, “I would like to show you papers and it would be easier at the table.” He adds “you will be given a receipt for everything we take.”
After a bit more small talk, Weiss says “I would like to read you your rights.” He proceeds to do so including that anything she says can be used against her, that she has a right to a lawyer, and has the right to end the conversation at any time. At the end of the reading he asks whether, considering her rights, she wants to proceed. She agrees and the interview starts.
What explains the huge discrepancy between the events as recorded on tape and the description in both Archer’s complaint and the National Review article? Is it possible Archer suffered a total memory loss, perhaps due to the inherent trauma of the event, forgetting important details like the reading of the warrant and of her Miranda rights and somehow recalling that Weiss shouted at her? That seems implausible. The gap between asserted and actual events is just too great to be explained by simple memory loss.
In recent years, there have been a number of cases where news stories that appeared in respectable publications were later exposed as works of fiction. I believe this is a similar case.
There is striking similarity between all the accounts that have appeared in the conservative media even when they describe ostensibly different events. Although most of the descriptions are sourced anonymously, two sources do appear repeatedly: Eric O’Keefe when it comes to the claims in the conservative media and attorney David Rivkin when it comes to the claims in the briefs. Rivkin was O’Keefe’s lawyer throughout the challenges to the second John Doe investigation, and is listed as co-counsel on Archer’s complaint. O’Keefe and Rivkin are the most likely authors of this fiction.
This suggests the likely source of the errors in the Archer complaint is not Archer but Rivkin, who needed to insert them to make the complaint consistent with tales promoted by him and O’Keefe.
This would explain another mystery. The violations of due process alleged in the tales were so great that if proven true they would have likely been sufficient to shut down the investigation. There would have been no need to invent a new right: the right of independent groups to coordinate with a candidate. Yet, as Justices Annette Ziegler and Shirley Abrahamson both noted, there has been no complaint of this due process violation. Such a complaint would have required the courts to make a factual determination, likely exposing the claims as untrue.
The success of Rivkin and O’Keefe in convincing much of the conservative world that their tales are facts, despite the lack of corroborating evidence, is remarkable. It will be interesting to see how they explain away the evidence on the tape.