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Wisconsin Supreme Court Justice David Prosser recused himself from a drunken driving case earlier this year after he apparently went outside court proceedings and asked questions of a state lab.
The Milwaukee Journal Sentine reported the court was notified in February that someone identifying himself as Prosser contacted the Laboratory of Hygiene on Feb. 19 and asked questions that could be construed as relating to the case.
Judges are supposed to decide cases based on facts presented, not information gathered independently. Wisconsin’s ethics code for judges says that in general judges can’t get into discussions with witnesses outside the courtroom.
Prosser withdrew from the case on Feb. 27, the day his apparent contact with the lab became public.
A phone message left at Prosser’s office wasn’t immediately returned to The Associated Press. An email sent to a court spokesman in an effort to seek comment from Prosser was not immediately answered.
“It seems like something he ought not to have been doing,” Marquette University Law School professor Chad Oldfather said of Prosser’s apparent contact with the lab.
Prosser’s withdrawal leaves six judges on the case, and the possibility of a 3-3 split. The case could be significant because it deals with an unsettled area of law on when analysts must testify in drunken driving cases.
The case stems from a 2007 third-offense drunken driving charge. Michael Griep was charged in Winnebago County after a test showed he had a blood-alcohol level of 0.152. He was convicted in 2009 and appealed, saying his right to confront witnesses was violated because the technician who analyzed his blood sample didn’t testify. Instead, a supervisor did.
An appeals court panel agreed with the conviction, but said the question of when analysts must appear in court is a persistent one. The state’s highest court is expected to rule this summer.
David Meany, the legal services administrator for the state Department of Justice, told the court’s clerk on Feb. 27 that earlier that month someone identifying himself as Prosser had contacted the lab asking questions.
The head of the lab also received an email from the state Law Library asking detailed questions about the analyst at the heart of Griep’s case. In addition to seeking the analyst’s résumé, the email asked how often she had testified at trial and what the financial effect would be on having analysts testify more often.
The Law Library provides confidentiality to its users.
Griep’s attorney, Tricia Bushnell, said the questions in the email are similar to ones Prosser asked during oral arguments in November.
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