There is every reason to think that the issue, which has reached all the way to Pope Benedict XVI, will be one Prosser is forced to confront if he seeks another 10-year term on the high court.
In 1979, Prosser, then Outagamie County District Attorney, told a mother he did not want to prosecute a Green Bay priest who had abused her sons because "it would be too hard on the boys" -- even though the two victims were prepared and willing to testify.
The priest, John Patrick Feeney, who is now 81, went on to abuse other children before he was sent to jail in 2004. Prosser, meanwhile, went on to become Speaker of the State Assembly a justice on the Wisconsin Supreme Court.
In 2008, Prosser recused himself from two Supreme Court cases involving the Catholic Church and allegations of sexual abuse of minors, following reports that had he declined to prosecute a priest accused of child molestation while serving as district attorney in Outagamie County. The priest was convicted of the charges almost 30 years later.
Prosser was less than open about his involvement at the time. Prosser had participated in other similar cases in the past, but his recusals came only after his refusal to prosecute the case when he was a DA became public, and after one of the priest's victims spoke up.
"He knows damn well what happened and what was said," said Merryfield, now 43. "He dropped the ball, and he should recuse himself."Prosser isn't the only prosecutor in Wisconsin who's come under criticism for failing to act against pedophile priests. Longtime Milwaukee DA E. Michael McCann also failed to take legal action. McCann, a devout Catholic, has retired from public office. Prosser, who is not a Catholic, faces a reelection campaign in the spring of 2011.
The case involved the Merryfield brothers, who were 12 and 14 years old when they were abused by Feeney in 1978 while he was assigned to St. Nicholas Parish in Freedom. Feeney left the state in 1985 - stopping the clock on the statute of limitations - and authorities were able to have him extradited in 2004 for prosecution.
According to police reports, the Merryfields' mother initially complained to the diocese, and she dropped the matter when she was told the priest had been removed from the ministry. When she found out he had been moved to another parish, she called police. Prosser, accompanied by a deacon and another member of the parish, went to the woman's home, where he told her the trial would be too hard on her sons.
"I was ready to take the stand," Troy Merryfield said Monday. "He (Prosser) said it would be too embarrassing for a kid my age and said what jury would believe a kid testifying against a priest? Then he said, what really makes it bad is that Feeney's brother, Joe, sang on the Lawrence Welk show and everybody watched that back then."
There were already complaints of sexual misconduct at the new parish, but it's unclear if the mother or Prosser was aware of them.
"Did he (Prosser) follow up with the bishop of Green Bay to see how this man was being treated?" [a victims advocate] asked. "If he had checked to see where they put this man, he would have found he had been placed in another parish where he abused another child." ... "It wasn't as if sexual abuse of a child wasn't a felony back then," Troy Merryfield said. "The laws were on the books, and he should have prosecuted."
Is this all old news that won't be relevant in 2011? Perhaps, but the questions about the pope's handling of a Wisconsin case date back to 1985, and are still on the front page. Marie Rhode, who covered the issue for the Journal Sentinel, wrote a piece recently for Milwaukee News Buzz called, "The story of a 40-year cover-up."
Maybe by next year the media and voters will have moved on, but Prosser must be thankful his term wasn't up this spring. In any case, it seems likely he will have a lot of explaining to do.
As additional background, here is a report from the Appleton Post Crescent -- where Prosser was the DA -- posted on the website of a law firm handling sexual abuse cases:
Documents released in 2008 showed that Prosser told a mother when he was Outagamie County district attorney that he did not want to prosecute a priest accused of abusing her sons because "it would be too hard on the boys."
In that case, the priest, John Patrick Feeney, who is now 81, eventually was convicted in 2004 on three counts of sexual assault of a minor and one count of attempted sexual assault of a minor.
Two brothers, Todd and Troy Merryfield of Freedom, testified to convict the defrocked priest.
A special report in The Post-Crescent, published in May 2001, detailed how Feeney was moved 14 times in 14 years during his stint with the Green Bay Diocese. In all, he served at 18 parishes in the diocese between his June 1952 ordination and before moving to California in 1983.
After the Merryfields came forward, word about Prosser's refusal to prosecute Feeney began to spread.
The advocacy group Survivors Network for Those Abused by Priests gathered evidence of his connection to the Feeney case or potential conflicts of interest in other cases.
Peter Isely, Midwest coordinator of SNAP, said Thursday that Prosser's recusal in these two latest cases involving the Catholic Church and sexual abuse of children "raises a lot of questions."
Isely said he wondered at the decision now because Prosser ruled on two previous cases.
In 2005, Prosser wrote a majority decision that barred a lawsuit against the Archdiocese of Milwaukee because the statute of limitations had expired.
But he joined with the majority last year in a case that opened the door to lawsuits against churches by means of alleging fraud in covering up past sex abuse by clergy members.
He joined the court after a series of landmark decisions that erected a barrier to lawsuits against the Catholic
Church by adult victims of childhood sexual assault by clergy.
Plaintiffs face steeper obstacles to such suits in Wisconsin than in any other state.