MADISON, Wisconsin — In an unusual move, a Wisconsin Supreme Court justice has asked his colleagues to reconsider their decision not to hear an appeal of a felony conviction from a former aide to Gov. Scott Walker when he was Milwaukee County executive.
Justice Michael Gableman, who is part of the four-justice conservative majority on the state's highest court, filed his request to reconsider the case of Kelly Rindfleisch on Thursday. The motion was dated Wednesday and sent both to the justices and attorneys.
Gableman's one-paragraph filing didn't list a reason for his request and he did not immediately return a message left with the Supreme Court's spokesman from The Associated Press. Court spokesman Tom Sheehan said justices are barred by law from talking about pending or possible pending cases.
Rindfleisch's attorney, Frank Gimbel, said he was surprised by Gableman's request.
"It's very unusual," Gimbel said. "But I am elated by the fact that this action has been initiated and I truly hope that the Supreme Court does give a petition for review."
Anne Schwartz, a spokeswoman for the state Department of Justice, which prosecuted the case, declined to comment.
Former Wisconsin Supreme Court Justice Janine Geske, now a law professor at Marquette University, said she's not aware of any similar request being made.
"For a justice to write a letter saying they want it reconsidered and not even give a reason ... I don't remember that ever happening," Geske said.
Rindfleisch was one of six people convicted in a so-called John Doe probe into Walker's former aides and associates while he was the Milwaukee County executive. The probe began in May 2010, six months before Walker — a likely presidential candidate — was elected governor.
Prosecutors accused Rindfleisch of working on Walker's gubernatorial campaign and Republican Brett Davis' lieutenant governor campaign out of her county office. She ultimately pleaded guilty in 2012 to one felony count of misconduct in office and was sentenced to six months in jail and three years on probation.
On June 12, Rindfleisch asked the U.S. Supreme Court to take her case, arguing that investigators exceeded their constitutional authority when they searched her email. Rindfleisch argued the case raises significant questions about how the Fourth Amendment's restriction on general searches applies to digital evidence seized from witnesses.
Her attorneys argued in the petition to the U.S. Supreme Court that investigators stated in search warrants seeking permission to seize Rindfleisch's emails that they were looking for evidence that Tim Russell, then Walker's chief of staff, had broken the law. Russell was ultimately sentenced to two years in prison for stealing more than $20,000 from a nonprofit group Walker had assigned him to lead.
The state Supreme Court rejected Rindfleisch's appeal in March without comment. Justice David Prosser, who along with Gableman is part of the conservative majority, did not participate. Gableman said in his motion filed with the other justices that he will ask that the issue be discussed during a closed conference on Friday.
Scot Ross, director of the liberal group One Wisconsin Now, accused Gableman of having political motives in attempting to revive the appeal.
"His going to bat for Walker's former aide, convicted of violating the public trust and campaigning on public time, is yet another instance of the cronyism and corruption of the conservative court majority," Ross said.
Rindfleisch began serving her prison sentence in April.
The probe into Walker's county associates led to a second John Doe investigation into whether Walker's 2012 recall campaign illegally coordinated with conservative groups.
That investigation is on hold, however, after one of the groups, Wisconsin Club for Growth, and its director, Eric O'Keefe, asked the state Supreme Court to rule on the probe's validity. The group and O'Keefe contend the investigation is a violation of their First Amendment rights and an attempt to criminalize political speech. The court is expected to rule this summer.
A John Doe investigation is Wisconsin's version of a grand jury probe where information is tightly controlled and investigators go about their work in secret.
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