James Sample, an associate professor at Hofstra Law School in New York, said he believed the justices who witnessed the altercation could remain on the case, particularly at a stage when all the court needs to do is issue a perfunctory order to create the panel that would hear the case.
Anyone would agree that a judge could not participate in a case about a mugging that the judge witnessed, Sample said. But it would not be fair for justices to recuse in Prosser’s case and leave the court without a quorum to hear the case, he said. If that happens, then Prosser would avoid the scrutiny and possible discipline that every other judge in Wisconsin would face in a similar situation, Sample said.
“We’re talking about a justice of the state Supreme Court asking and arguing for immunity even from basic judicial process,” he said.
Prosser has three close allies on the court – Roggensack, Gableman and Annette Ziegler. If Prosser and those three recuse themselves, the case would end.
“If they do that, then the consequence of the incident will be worse even for the system than the individual,” Sample said. “In that scenario, the allies would essentially be complicit with the notion that Prosser is entitled to immunity.
“At the end of the day, ideological allies or not, each and every member of the court has a higher calling to the rule of law, or at least they should.”
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