Attorneys for two people subpoenaed in the John Doe case argued in the state Supreme Court yesterday that Dane County Circuit Judge Sarah O’Brien should not have complete authority over the proceedings.

The lawyers, Franklyn Gimbel and Stephen Morgan, had been disqualified by the court because their firms represented clients in the investigation. The order had been issued by O’Brien but has since been lifted.

Both lawyers said another judge, not O’Brien, should oversee the case.

Attorneys are awaiting the verdict of O’Brien in the potential conflict of interest with Dane County District Attorney Brian Blanchard.

Sen. Brian Burke, D-Milwaukee, the only person formally charged in the investigation, has argued that Blanchard should not be allowed to continue the investigation because he is clearly guilty of the same illegal campaigning.

Blanchard may have a conflict of interest, because during his 2000 campaign, it is possible he benefited from illegal campaigning activity similar to activities being investigated.

“Only the prosecutor, Milwaukee DA McCann and his assistants and the judge will ask questions, and only the prosecutor may offer argument,” O’Brien said in her opening statements Tuesday. “The question to be determined in today’s hearing is whether DA Blanchard has a conflict of interest, and if so, what the remedy should be. DA Blanchard is not a subject or target of the John Doe. He was not a state employee and could not have engaged in the primary type of illegal activity being investigated by the John Doe.”

O’Brien said she planned on listening to testimony before weighing the facts against applicable laws and other standards.

“Those standards may include the Rules of Professional Responsibility for Wisconsin attorneys, the State Ethics Code and a variety of promulgated ethical standards for prosecutors,” she said.

During Tuesday’s probe, E. Michael McCann said he saw no conflict of interest in allowing Blanchard to continue the investigation.

“I believe that there is not here any conflict by Mr. Blanchard that would disqualify him from continuing as the prosecutor in this John Doe proceeding,” McCann told the court.

Edward Picci, a former campaign volunteer, testified that he was sent to the Assembly Democratic Caucus office to obtain what he thought were voter lists by Scott McCormick, who was the co-chair of Blanchard’s campaign.

McCormick said he did not remember sending Picci to the caucus office.

Blanchard also denied knowledge of this list in his testimony and said he obtained his voter lists through a private firm.

After listening to the testimony of Picci, McCann said he still did not believe there was a conflict of interest.

“And whatever the story is on Mr. Picci, what he got those two lists for, I do not know,” he told O’Brien. “I don’t know whether that was a list that came to the usage of the campaign or not ? but just to be very clear, Mr. Blanchard did not know about it.”

O’Brien said she would make a decision about the case as soon as possible.