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	Editorial: Prosser's Conscience The Facts Are Too Murky to Make It Certain That the State Supreme Court Justice Should Recuse Himself Milwaukee Journal Sentinel February 5, 2008 http://www.jsonline.com/story/index.aspx?id=714975 State Supreme Court Justice David Prosser's involvement as a county prosecutor in the case of a sexually abusive priest does not mean he necessarily should absent himself from a case before the high court involving another priest. The legal issues differ, and demands for recusal seem to presume that Prosser, who is not Catholic, possesses a bias for the church. We find this unlikely. He has a mixed record on rulings regarding this type of issue. He voted with the rest of the court last year that the church could be sued for fraud because it failed to warn parishioners about abusive clergy. But in 2005, he wrote the decision that barred suits in cases in which there was no proof that the archdiocese knew of the conduct. An article Tuesday by the Journal Sentinel's Marie Rohde explained the questions on Prosser's capacity to rule in such cases (www.jsonline.com/714473). As Outagamie County district attorney in 1979, newly released documents show, Prosser did not prosecute John Patrick Feeney in a case in which the priest was accused of abusing boys. Prosser, accompanied by a church deacon and another member of the parish, told the boys' mother that the trial would be too hard on her sons. It's unclear whether Prosser knew there were other charges of misconduct with Feeney. The priest, in other church assignments, then abused other children before he was imprisoned in 2004. He is 81. On Monday, one of the victims called on Prosser to step aside in cases involving sexual misconduct among priests. One is now before the court involving the statute of limitations in such cases. The state argued in extraditing Feeney that the clock stopped on the statute of limitations when he left the state in 1985. He then was charged and convicted in February 2004 of three counts of sexual assault of a minor in a case involving two brothers, who were 12 and 14 when they were abused. Feeney is now serving a 15-year sentence at the Fox Lake Correctional Institution. "He (Prosser) knows damn well what happened and what was said," said Troy Merryfield, one of the victims. "He dropped the ball, and he should recuse himself." Given Feeney's record, it seems abundantly clear that Prosser did indeed drop the ball. Does that mean that he can't rule on a separate legal issue involving abusive priests? He has shown he can rule for and against what might be the church's position in such cases. One theory holds that if there is any doubt of partiality, judges or justices should recuse themselves. On the high court, however, this could mean deadlocked rulings. Ultimately, only Prosser can decide whether he can rule ethically. From our perspective, the facts as we know them don't make a compelling case for recusal.
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