By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis last year kept a defendant jailed for 42 days for contempt of court for rolling his eyes, shuffling papers and giving McGinnis, in the judge's own words, a "fuck-you look."
The contempt finding against Brian Mitchell was eventually overturned by a state appeals judge. Mitchell's lawyer on appeal, Joseph Ehmann, said Mitchell merely was reacting in frustration to comments McGinnis made.
A Court of Appeals panel last month overturned a prison sentence McGinnis handed down in a different case. The appeals panel ruled McGinnis showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison.
McGinnis did something similar but not identical in the Mitchell case. He told Mitchell during a pre-trial hearing that he better keep in mind that McGinnis would be the one to eventually sentence him.
McGinnis originally sentenced Mitchell to six months for the contempt but offered to purge the finding if Mitchell apologized in writing and orally in court and paid a $5,000 fine. Mitchell was poor enough to be represented by the State Public Defender's Office.
McGinnis let Mitchell out after 42 days. The human trafficking charge against Mitchell was dismissed less than a month later.
The action leading up to the jailing played out during two days of hearings. Below is an excerpt from the transcript from the first day.
During this June 6, 2017 hearing, Mitchell is accompanied by attorney Daniel Muza, who has just withdrawn from the case and no longer represents Mitchell. The defendant is without a lawyer.
This section begins after McGinnis cautions that Mitchell's request for a speedy trial means that there are factors that his lawyer might not have enough time to prepare.
Mitchell: I highly understand.
McGinnis: I'm not done talking yet.… There is a likelihood, a good likelihood, that that case will need to be rescheduled and pushed to a later date. Do you understand that?
Mitchell: yes. I – – I will feel that's a conflict.
McGinnis: I'm not sure what that means.
Mitchell: I would like it at the earliest convenient on the calendar dates, my jury trial. I want to, I intend, will exercise my right to exercise a speedy trial. If my attorney can't cooperate with that, it's a conflict of my interest.
McGinnis: How come it's a conflict of your interests? ... And if you're attorney is on vacation, for example, on that date – –
Mitchell: I understand that.
McGinnis: You must not.
Mitchell: I can sign a stipulation with my attorney. I mean, saying that I understand that it will probably put them in less effective -- It wouldn’t put me in the best defense, but that’s just my decision. Me and my attorney could probably come to some type of an agreement on that.
McGinnis: You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing.
Mitchell: No. I -- I asked him to.
McGinnis: It wasn’t a question for you. Okay. So you use terms that don’t make sense, which is okay. Then when we try to explain things to you, you appear or you seem to want to know everything; and then you seem to make more comments that don’t make sense. So I’m not interested in trying to really have a conversation with you where you and I both agree.
Mitchell: Me neither. Me neither.
"You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing." – Outagamie Circuit Judge Mark McGinnis
McGinnis: I’m just telling you the reality of something.
McGinnis: Okay. I want you to understand today.
Mitchell: I understood that already.
McGinnis: I wasn’t done asking the question. For some reason you have a problem with interrupting people when they are talking. You can roll your eyes. It’s really impressive.
Mitchell: You have a problem the way you talk to people.
McGinnis: Okay, good. Someday I’m going to sentence you.
McGinnis: That’s going to be a problem --
McGinnis: -- for you that day.
McGinnis: Maybe. For your sake you’d better hope it doesn’t happen because I have a pretty good memory of it and if it --
Mitchell: I’m innocent so I don’t worry about your sentencing.
McGinnis: You might be innocent. You might not have to worry about it. That’s fine.
Mitchell: All right then.
McGinnis: Are you done rolling your eyes?
"Someday I’m going to sentence you. ... That’s going to be a problem...for you
A few moments later, after another brief exchange, Mitchell urged McGinnis to proceed with the hearing.
McGinnis: I am trying, but you are interrupting and creating nonsense by rolling your eyes and other antics.
Mitchell: That’s not interrupting if I am rolling your (sic) eyes. I can roll my eyes.
McGinnis: No, you can’t roll your eyes, sir. I am going to find you in contempt of court for your conduct today, for the disrespect to the Court. Is there anything you’d like to say before I impose a consequence for that?
McGinnis: I’m going to sentence you to six months in the Outagamie County Jail in lockup. That sentence begins today. You may purge that contempt by writing an apology letter to me.
Mitchell: I will.
McGinnis: And, secondly, by appearing here in court and making a verbal apology.
Mitchell: I will.
McGinnis: And by paying a fine of $5,000. If you purge that contempt by doing those three things, then that contempt is purged and you’re no longer sitting. Otherwise you will sit for six months in lockup. Anything on that issue, sir?
McGinnis: Okay. So you can keep rolling your eyes and then I will keep giving you six months, or you can grow up and handle yourself the way that people are supposed to handle themselves in court. Do you have any questions about that?
Mitchell: Do I get appointed an attorney? Can I?
McGinnis: I asked if you had any questions about that?
Mitchell: Can I argue that?
McGinnis: Argue what?
Mitchell: The sentence you just gave me, your charge.
McGinnis: You can do anything you want you can keep rolling your eyes if you want, like you said. You told me a couple minutes ago you can roll your eyes. Sure you can go ahead and roll your eyes. That I can go ahead and do what I want to do.
Next: Another hearing, and the judge drops the Fbomb from the bench.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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