A Wisconsin Supreme Court justice on Tuesday withdrew his unusual request asking for his colleagues on the state's highest court to review its decision not to hear an appeal of a felony conviction from a former aide to Gov. Scott Walker.
Justice Michael Gableman filed his request Thursday in the case of Kelly Rindfleisch, who worked for Walker when he was Milwaukee County executive and is now in prison after being convicted of misconduct in office.
Gableman withdrew his motion in a letter Thursday, the last day of the Supreme Court's session. Because Rindfleisch has a request pending before the U.S. Supreme Court to review the case, he wrote, "that is a better course of action at this time."
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. Prosecutors accused Rindfleisch of working on Walker's gubernatorial campaign and Republican Brett Davis' lieutenant governor campaign out of her county office.
She 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. Rindfleisch began serving her prison sentence in April.
The state Supreme Court rejected Rindfleisch's appeal in March without comment. Justice David Prosser, who along with Gableman is part of the four-justice conservative majority, did not participate.
To succeed on his request for review, Gableman would have had to convince one of the three other justices who are not in the conservative majority to side with him.
"He probably didn't have the votes to make it come through," said Rindfleisch's attorney Frank Gimbel. "He didn't want to be on an island. That would be my guess."
Gimbel said he would continue to pursue the case in federal court. The U.S. Supreme Court has not yet said whether it will take the case.
Gableman's motion seeking review of that denial was based on comments an appeals court judge wrote in his dissenting opinion in the Rindfleisch case, he wrote. Gableman quoted that judge, who said Rindfleisch's Fourth Amendment rights were violated because he said investigators lacked probable cause to seize her emails.
Investigators sought search warrants to take Rindfleisch's emails so they could find evidence of wrongdoing by Tim Russell, then Walker's chief of staff. 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.