CASE STALLS OVER SECRECY DISPUTE

John Doe Probe Linked To Homicides

Waukesha - Testimony in a yearlong John Doe investigation concerning a
2-year-old unsolved double murder has been halted by a secrecy issue
that will be weighed by the state Supreme Court.

The in-court activity in the probe concerning the slayings of two men
whose chained, bullet-riddled bodies were found in an Ottawa pond, in
Waukesha County, in September 2002 stalled after the judge presiding
over the closed-door proceeding ordered attorneys for a prospective
witness to take a secrecy oath and they refused, according to court
records and a prosecutor.

The attorneys asked the state Court of Appeals to intervene and rather
than tackling the issue, the appellate court referred it to the high
court, which recently decided to add it to its caseload.

While Waukesha County District Attorney Paul Bucher has "no doubt"
that the judge had the authority to order the secrecy oath, the
referral of the case by the appellate court and its acceptance by the
Supreme Court signals its importance.

"It means that this is seen as an extremely significant issue that
should be reviewed by the Supreme Court in the first instance,"
Marquette University Law School Professor Daniel Blinka said. "What
this involves is the Supreme Court balancing the historical power of a
John Doe judge to conduct the proceedings in secret with the right of
a witness to have representation by counsel."

Unsolved double homicide

The Doe proceeding in question was convened last year before Waukesha
County Circuit Judge J. Mac Davis and, although the sporadic testimony
was not open to the public, the probe's existence was no secret. While
he has declined to discuss what has happened behind Davis' closed
doors, Bucher has confirmed that it concerns the double homicide.

Brian Lazzaro, 25, of Mukwonago, and Andy Long, 25, of West Milwaukee,
were found dead in a private pond in Ottawa on Sept. 5, 2002. Each had
been shot multiple times, their necks cut and their bodies bound in
chains before being dumped in the water, authorities have said.

Investigators, who are continuing their efforts while testimony is
stalled, have not officially named any suspects in the homicides.

Authorities have made clear, however, that a key figure in their
investigation is a former Ottawa man they believe was the last person
to see the victims alive.

That man, Chad J. Lurvey, 30, was sentenced in June 2003 to eight
years of probation for warehousing drugs for Long. The pond where the
bodies were found is near Lurvey's former home and is owned by his
family.

According to Lurvey's statements to investigators, he was repeatedly
questioned and over the course of days told authorities that he had
helped store marijuana and cocaine for Long. Lurvey said the two men
left his house without incident Aug. 24, 2002, after Lurvey gave them
$5,000 and four kilos of cocaine. After the bodies were recovered 12
days later, Lurvey was arrested on the drug charges.

The Doe proceeding began on the day Lurvey was sentenced, and the
attorneys involved in the dispute over the secrecy oath with Davis,
Hal Harlowe and Stephen P. Hurley, represented Lurvey in the drug
case. A reporter's calls to both attorneys were not returned.

When a reporter asked him about the dispute, Bucher said he was not at
liberty to identify either the attorneys or the witness involved, but
said he believed Davis had the authority to demand a secrecy oath of
the attorneys if they wanted to represent the witness. Court records
indicate that Davis told the attorneys they would be disqualified from
representing the witness if they did not take the secrecy oath.

"If an attorney is going to be recalcitrant and basically tell a judge
to get lost, which is what happened here, I think the judge should
have some recourse and that recourse is limited by the secrecy of the
proceeding," Bucher said. "I think a judge's inherent authority in
this type of situation is vast."

In a ruling last year concerning the state government caucus scandal,
the Supreme Court concluded that the presiding judge in a John Doe
proceeding has authority to disqualify attorneys. The judge in that
Doe case disqualified two attorneys in the case because lawyers at
their firms were representing others called in the
investigation.

The central questions in the double-murder Doe are whether a judge can
disqualify an attorney for not taking a secrecy oath and how that
affects the representation rights of the witness.

"The John Doe has been used in Wisconsin for over 100 years, and the
(supreme) court has long recognized the authority to conduct these
proceedings in secret," Blinka said. "The whole point of a John Doe is
that it is not a prosecution, but an investigation, and secrecy is
sometimes essential in an investigation.

"Witnesses may be endangered or the investigation could be compromised
without secrecy."

At the same time, Blinka noted, witnesses have long been granted the
right to consult with their attorney, who is allowed in the courtroom
as an observer during a Doe case.

"What the Supreme Court may be faced with doing here," Blinka said,
"is trying to reconcile two things that can't be reconciled."