![]() By Gretchen Schuldt Circuit Judge David Borowski should resign if he does not apologize and remedy the error he made last week in finding an assistant state public defender in contempt of court, an organization representing Wisconsin defense lawyers said Tuesday. The Wisconsin Association of Criminal Defense Lawyers said Borowski should vacate the contempt finding against Assistant State Public Defender Puck Tsai, who was handcuffed and detained in a cell after the judge said Tsai rolled his eyes and threw his arms up. Borowski did not give Tsai an opportunity to speak before having him incarcerated, even though the right to speak before contempt sanctions are imposed is well-established in Wisconsin. The case in which Tsai was involved is expected to be recalled soon so the parties can deal with any outstanding issues. WACDL, in a statement released Tuesday afternoon, said Borowski failed to follow the correct procedure for finding someone in summary contempt. "At best, Judge Borowski did not understand or correctly apply the law of summary contempt and should be required to explain and rectify his actions," the organization said. WACDL President Chad Lanning said the statement referred to Borowski's failure to immediately provide Tsai with an opportunity to speak to the contempt finding and Borowski's failure to specify the terms of the sanction before ordering Tsai into custody. WACDL called for Borowski to vacate the contempt finding and issue an order stating the finding was made in error. WACDL has about 475 members statewide. The proposed order "should specifically state that the original finding of contempt and detention of Tsai was in error, there was no basis for same, and should not have been made. The order should also state that the erroneous contempt finding and detention should in no way be viewed to adversely or negatively impact Tsai for any purposes in the future, e.g., employment, any professional licensing, applications for insurance or public office." "If Judge Borowski does not remedy what occurred and apologize - then he should resign immediately because he does not fully appreciate the limits placed on judicial powers," WACDL said. The statement also said that "WACDL continues to investigate this matter and other allegations it has received where Judge Borowski allegedly failed to demonstrate proper judicial temperament, failed to demonstrate the proper understanding of the limits of his judicial powers, and failed to provide litigants appearing before him with the due process which the law requires they receive. " Borowski declined to comment. Tsai was in court for a bail hearing Friday for Marcus Wilborn, who was charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it. Borowski, clearly unhappy that Wilborn was out on a signature bond, agreed with a prosecutor's request to set a cash bail at $2,500. He found Tsai in contempt after Tsai tried to argue on behalf of his client. "Judge, this is – judge, I wasn't able to finish any one complete sentence," Tsai said moments before being handcuffed and led away. "That's fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court an innocent person." "No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt." The judge continued: "Rolling your eyes, throwing your hands in the air, acting like I'm some kind if idiot gets you locked up for contempt. We'll discuss purge later. In the meantime he sits in custody." The prosecutor on the case - not Borowski or court staff – notified the State Public Defender's Office that Tsai was in custody. Tsai was returned to court in chains, as is customary for criminal defendants, when SPD supervisory lawyers appeared on his behalf. The chains were removed. He was released from custody that day, as was his client, whose re-test came back clean. Wisconsin precedent states that people accused of contempt should have the right to speak before sanctions are imposed. Borowski did not provide Tsai with an opportunity to do so until the other SPD lawyers were present, according to a transcript of the hearing. "Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court." - American Bar Association The State Supreme Court, in a decision written by Chief Justice Nathan Heffernan, addressed the issue in 1987.
"Because the summary contempt procedure involves imposition of a punitive sanction, not a remedial sanction, its purpose is, by definition, punishment. ..." Heffernan wrote for the court. "Therefore, it is appropriate that a contemnor should have the opportunity, similar to a criminal defendant, for allocution before punitive sanctions are imposed. The contemnor may well have something to say that mitigates, if not explains away, the contumacious act. ..." The case arose out of case involving jury selection for a drunk driving trial. Bruce Currie had been dismissed from the jury pool after stating during that his brother had been "murdered by a drunk driver" and that he did not like anyone in the Washington County District Attorney's Office. Passing the defense table on his way from the courtroom, Currie whispered "I hope they hang you" to the defendant. Washington Circuit Judge James B. Schwalbach dismissed the jury panel, granted a defense motion for a new panel, and fined Currie $1,000. Heffernan also quoted the U.S. Supreme Court: "Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his "liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.'" (Full disclosure: Currie was represented on appeal by WJI Board member Robert Lerner.) Another Wisconsin Supreme Court case involved an attorney, Roseann Oliveto, who was fined $250 after a Crawford County judge heard her call an order he had just handed down "ridiculous." This 1995 opinion also was written by Heffernan. The State Supreme Court said the contempt finding was appropriate, but said Circuit Judge George S. Curry erred when he did not provide Oliveto a right to speak. The court threw out Oliveto's fine. "The right is so basic that it will not be inferred from the record," Heffernan wrote. "The right must be exercised after the court has made its finding of contempt but before punishment is imposed, thereby permitting the judge to vacate the contempt order entirely or to give a more lenient sanction, after considering any mitigating factors revealed in the allocution." He continued: "Due process and concepts of fundamental fairness are satisfied when the record following a summary contempt proceeding demonstrates all of the following: (1) a statement indicating the judge's decision to hold a person in contempt as well as the factual basis for the holding; (2) a statement from the judge informing the contemnor of the right of allocution and a further statement inviting the contemnor to exercise that right prior to imposition of sanction; and (3) the judge's final decision to impose sanction and the sanction, if any, is imposed." American Bar Association standards call for judges to allow allocution by the person accused of contempt. "Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court," the ABA says in its commentary on Standard 6-4.5 (ABA Standards for Criminal Justice: Special Functions of the Trial Judge) "Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course.
0 Comments
Attorney found in contempt threw up his hands, rolled his eyes, treated judge like idiot, judge says10/29/2018 ![]() By Gretchen Schuldt A lawyer threw up his hands, rolled his eyes and, according to Milwaukee County Circuit Judge David Borowski, treated the judge "like some kind of idiot" before Borowski found him in contempt of court, according to a transcript of the hearing. "Judge, this is – judge, I wasn't able to finish any one complete sentence," Assistant State Public Defender Puck Tsai said moments before being handcuffed and led away. "That's fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court an innocent person." "No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt." The judge continued: "Rolling your eyes, throwing your hands in the air, acting like I'm some kind of idiot gets you locked up for contempt. We'll discuss purge later. In the meantime he sits in custody." Tsai was in court for a bail hearing Friday for Marcus Wilborn, who was charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it. Borowski was clearly unhappy that Wilborn was out on a signature bond in the first place. "He's out on in what I think is shocking on a PR bond...." the judge said at one point. When the District Attorney's office asked for a $2,500 cash bond, Tsai argued that there were many reasons urine may be diluted. He also said his client was willing to be retested. A pretrial worker testified that she did not know why the urine was diluted. "If anything the state's request is low," Borowski said. "The bail is $2,500. He goes into custody. This is a homicide. I'm not playing games in this case. He violated the terms of his monitoring, 2,500 cash." Tsai tried to talk about the case but Borowski cut him off. "Right, looking at the allegations where he allegedly had THC and alcohol in his system. Now he's out on what I consider to be and, I'll say this on the record, a preposterous PR bond, which, by the way, is vacated and waived, so now the county can try to collect their PR bond." Tsai tried again. "Judge, again, if I may be heard on that. I wasn't – I want to let the court know that the criminal complaint failed to mention the reason why the collision happened was because that the deceased person was running a stop sign. ..." Borowski: "Hang on, counsel. What the defenses are or are not has nothing to do with bail. The allegations are your client was going 65 to 75 miles an hour in a 30 mile-an-hour zone, he had THC in his system, he had a BAC that's over the legal limit. His bail is $2,500, which, again, I'm being exceedingly generous. Let's all stop talking." The court clerk gave the next court date. "Rolling your eyes, throwing your hands in the air, acting like I'm some kind if idiot gets you locked up for contempt." – Milwaukee County Circuit Judge David Borowski Borowski: "Fine. We're done. Counsel, sit down. Deputy have the defendant sit down again. Counsel, is there something you want to say or do you want to go into custody?"
It was then Tsai talked about not finishing a sentence and found himself in custody moments later. After Assistant District Attorney Michael J. Lonski notified the State Public Defender's Office that Tsai was being held, Tsai was brought back to court, in chains as is customary for criminal defendants. He was represented now by SPD attorney Paige Styler. Borowski told Tsai, "Here's what I perceived – an awful lot of attitude. When you got up you were mumbling under your breath about not liking my decision, then when you sat down you – what I perceived as you basically tossing yourself back in your chair like 'oh my God, what the hell is the judge doing increasing Mr. Wilborn's bail.'" Borowski, in first holding Tsai in contempt, did not mention either muttering or the manner in which Tsai resumed his seat. Styler asked Borowski to, in the future, contact the SPD office if he "perceives any disrespect." "We just ask in the future that no one in our office ever have to go through something like this," she said. "That's fair," Borowski said. Tsai apologized "for anything that I've done whether spoken or unspoken that may have offended the Court." There was another recess while Wilborn was drug-tested again. Borowski: "Well, what I can hopefully chalk up to a bad morning, a mulligan, not a very good morning for defense counsel, was not my best morning, certainly was not the defendant's best morning." The pre-trial services worker reported that Wilborn's drug test was negative. Borowski: "Great. I'm vacating my prior increase in bail. Again, it was not anybody's best morning." ![]() By Gretchen Schuldt The detaining and chaining of a defense lawyer found in contempt of court Friday by a Milwaukee County judge sends a message that "undercuts a basic tenet of our justice system," a State Public Defender's Office (SPD) official said Saturday. "We stand with our staff attorney who was simply going about his job serving as a strong advocate for his client," said Randy Kraft, SPD communications director. Circuit Judge David Borowski ordered Assistant State Public Defender Puck Tsai into custody after Tsai reminded the judge of the presumption of innocence for Tsai's client and non-verbally revealed some frustration with the proceedings, which had led to his client being taken into custody, according to accounts. Borowski declined to comment Saturday, saying the case was still pending. Tsai could not be reached for comment. A similar incident last year in Las Vegas led to a judge being banned from the bench for life. In that case, Justice of the Peace Conrad Hafen ordered a lawyer handcuffed after she would not stop arguing on her client's behalf. "The message this action sends to our attorneys, whose jobs are to be zealous advocates for the rights of their clients, undercuts a basic tenet of our justice system." – Randy Kraft, State Public Defender's Office Tsai was representing a client who had been released on signature bond in August.
According to accounts by Tsai's colleagues, the SPD, and online court records: The District Attorney's office on Friday requested cash bail for the defendant because a drug screen showed the man had too much water in his urine. That is a sign of potential tampering but is not proof of tampering. Tsai argued against the request and Borowski cut him off. Tsai's frustration showed as the parties started to leave. Borowski called everyone back to their seats and made a stronger record for his decision. Tsai tried to argue again and reminded Borowski that the defendant was presumed innocent. Borowski responded and ordered Tsai taken into custody. Assistant District Attorney Michael J. Lonski – not court staff or the Sheriff's Department – alerted SPD that its lawyer was detained. SPD lawyers were dispatched to the courthouse. When they got there, Tsai was brought back in belly and leg chains, as is standard procedure for criminal defendants in custody. Tsai apologized to the judge at Borowski's request and was released. SPD lawyers criticized the judge on social media in an unusually public rebuke of someone who may rule for or against them in the future. The SPD office also was unhappy. "The fact that our attorney was taken into custody, handcuffed, and belly-chained for doing his job is unacceptable," Kraft said. "The impact on our attorney and his client is of utmost concern to this agency. The message this action sends to our attorneys, whose jobs are to be zealous advocates for the rights of their clients, undercuts a basic tenet of our justice system." And the defendant? He got a new drug test. It came back clean. He, too, was released. Outagamie Judge McGinnis issued contempt penalty far beyond what the law allows - Part III10/26/2018 ![]() By Gretchen Schuldt Outagamie County Circuit Judge Mark McGinnis went far beyond his legal authority when he sentenced a defendant last year to six months in jail for contempt of court, according to the State Court of Appeals. The law provides for a maximum of 30 days in jail for the type of contempt invoked by McGinnis against Brian Mitchell, District III Appeals Judge Mark A. Seidl wrote in summarily dismissing the contempt finding. McGinnis offered to purge the contempt finding if Mitchell, facing a human trafficking charge that later was dismissed, apologized orally and in writing, and paid a $5,000 fine. But the law allows only a $500 fine, Seidl said. McGinnis found Mitchell in contempt of court for rolling his eyes and moving papers around. He also later accused Mitchell of giving him a "fuck-you look." Mitchell, then 27 and poor enough to have public defender representation, eventually served 42 days on the contempt charge. McGinnis lifted the $5,000 fine after Carrie L. Plant, an attorney, obtained an order to appoint an attorney on the civil contempt charge if McGinnis refused to purge the fine, according to court records. Mitchell appealed the entire contempt finding. The state did not put forward a response brief and instead filed a letter "in which it concedes the circuit court's contempt sanction constituted an unauthorized penalty," Seidl wrote. Mitchell's appeal lawyer, Joseph N. Ehmann, in a court filing described his client as "an African-American man incarcerated far from home pre-trial because he could not post cash bond." Before the contempt finding, Ehmann wrote, Mitchell tried to explain that his top priority was a speedy trial. "Judge McGinnis responded telling Mitchell he 'must not' understand his rights, was 'obviously very confused,' was making 'comments that don’t make sense.'" The judge also told Mitchell he better hope that he doesn't come before McGinnis for sentencing, Ehmann wrote in his brief. "Mr. Mitchell reacted with body language expressing frustration or exasperation, and according to Judge McGinnis, 'rolling his eyes,'” Ehmann said. McGinnis did not make a clear record of what Mitchell did that constituted contempt, Ehmann said. The judge also failed to give McGinnis a chance to speak before imposing sanctions, as required by law, Ehmann wrote. Seidl, in dismissing the contempt finding, said the unauthorized penalty meted out by McGinnis was enough to do so. The state did not respond to Mitchell's argument that the excessive penalty demanded dismissal, nor did it argue that the excessive sanction could be reduced to something allowed by law, Seidl said. "We interpret the State's silence on this point as a concession of reversible error, and we have no obligation to develop arguments to the contrary," he wrote. By Gretchen Schuldt Representatives from the Wisconsin Justice Initiative and other organizations urged Milwaukee County voters Thursday to vote "yes" on the Nov. 6 referendum question asking whether recreational marijuana should be legalized and taxed. "We're urging a 'yes' vote because it's time for Wisconsin to join the ever-growing list of states that have recognized that marijuana prohibition is an outdated and regressive policy, WJI President Craig Johnson said at a press conference. "We're urging a 'yes' vote because it's wrong to create criminals out of people using cannabis for pain relief or to help with other medical symptoms." Marissa Ocampo, youth organizer for the ACLU of Wisconsin, said imposing hard punishments through the criminal justice system on marijuana users hasn't reduced usage. "Giving someone a criminal record for simple possession creates a lifetime of collateral damage," she said. "The punishment should fit the crime, and public opinion increasingly favors more sensible drug policy and a new approach to marijuana." In 2013, she said, the ACLU released a report that showed that statewide, African-Americans were more than six times more likely than whites to be arrested for marijuana possession, while studies show that African-Americans and white use marijuana at the same rate. The referendum question will ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"
County Supervisor John Weishan, who introduced the legislation authorizing the referendum, said arresting, prosecuting and incarcerating marijuana offenders was costly to taxpayers and the community. "We should say, 'You know what?'" he said. "'It's time to end the prohibition on cannabis in the state of Wisconsin.'" State Rep. David Bowen (D-Milwaukee) said the referendum can spark a new discussion about marijuana legalization in the State Legislature. "It's been too taboo for too long," he said. Restoring Our Communities - Wisconsin, a task force of Milwaukee Inner-city Congregations Allied for Hope, also participated in the event. "Black people are more likely to be locked up" for cannabis offenses, ROC member Barbara Robinson said. Reforming the marijuana laws means "we can bring our prison rate down." WJI research shows that the vast majority of felony possession of marijuana second offense or greater cases are brought against African-American men arrested in the city of Milwaukee north of I-94. "People used to describe marijuana as a gateway drug," WJI's Johnson said. "And unfortunately it is – because of the unequal way in which marijuana laws are enforced, for black and brown people it's a gateway into the criminal justice system, it's a gateway to jail, and it's a gateway to prison – and that's wrong." He concluded: "We are asking the people of Milwaukee to speak up in strong voice and tell the legislators in Madison that it's time for Wisconsin to join the 21st century and end marijuana prohibition laws." Defendants in criminal cases in Wisconsin have the right to request a different judge from the one originally assigned to the case. Defendants don't get to pick the judge they ultimately get.
Here are two charts showing substitutions among full-time Milwaukee County Circuit Court misdemeanor judges. Please note that the the top chart includes one more month than the bottom one does. Circuit Judges Hannah Dugan and Jean Kies were elected to the bench in April 2016; Circuit Judge Kristy Yang was elected in April 2017. Ex-cop gets 14 days, probation, $500 fine for kicking suspect in the face after surrender10/15/2018 ![]() By Gretchen Schuldt A former Milwaukee police officer was sentenced to 18 months probation and fined $500 for kicking a suspect in the face after he surrendered and was on the ground, surrounded by other officers. Milwaukee County Circuit Judge Kristy Yang ordered Michael L. Gasser to serve 14 days in the House of Correction, with Huber work-release privileges at the discretion of the House superintendent, as a condition of probation. She allowed Gasser 45 days to report to serve his time, and allowed the sentence to be transferred to Walworth County at Gasser's request. Gasser, who resigned from the Milwaukee Police Department after the incident, also is to complete 20 hours of community service, write the victim an apology letter, and "write a letter of self-compassion, which is really another way of saying reflection," Yang said. In a highly unusual move, Gasser's case was open and closed in two days. He was charged Sept. 6 and appeared before Yang for plea and sentencing on Sept. 7. The prosecution was handled by Assistant Attorney General Annie Jay on behalf of State Attorney General Brad Schimel, records show. Gasser was represented by Michael J. Steinle. Schimel's shop recommended probation with conditional jail time. Gasser pleaded guilty to one count of misdemeanor battery and two counts of misdemeanor disorderly conduct. The Aug. 4, 2017 chase Rosales led police on was high-speed and dangerous, Jay told Yang, according to a transcript of the plea and sentencing hearing. Rosales eventually surrendered to police, who dragged him through a car window and placed him face down on the ground, according to the complaint. Greenfield Assistant Police Chief David Patrick said in a statement that he saw "a stocky Milwaukee Police Department officer wearing black leather boots" walk up and kick Rosales in the face. Patrick saw blood coming from Rosales' face. Patrick later identified Gasser from a squad video. Greenfield Police Captain Michael Brunner said he grabbed Gasser after he kicked Rosales and pulled the officer away. Videos show at least one kick and possibly a second, the complaint said. The officers said they saw blood. Rosales suffered a broken nose and said he had a seizure, according to the complaint. Once Gasser and his partner returned to their car, the complaint says, they discussed the chase and decided it was the "best fucking thing...best one ever." Jay said Gasser did not even need to be part of the chase. "This defendant was, I believe, car number five or six. He wasn't even supposed to be in the chase," she said. "He was on another call for the city of Milwaukee and heard it go out, and he and his partner decided it would be fun to join in. So they joined in." The officers did not radio in their involvement, she said. "So this isn't a case of somebody whose life was in jeopardy, or who was involved in a high stress incident and lost his temper, and did something stupid," she said. "This was somebody who in the middle of the day cleared another call and decided to have a fun time which if you watch all the videos, Mr. Rosales is completely subdued by the time the defendant gets involved." "He wasn't even supposed to be in the chase. He was on another call for the city of Milwaukee and heard it go out, and he and his partner decided it would be fun to join in. So they joined in." – Special Prosecutor Annie Jay Other police officers from Greenfield and Milwaukee subdued Rosales and had him handcuffed and on the ground "by the time the defendant comes up and kicks him in the face," she said.
"This is the kind of case that people in the community pay attention to, and people want to know what happens when an officer takes advantage of someone who's vulnerable, down on the ground, handcuffed, and unable to defend himself, and has given up" Jay said. "It's not a case for a fine," she said. "There are real anger management issues that need to be addressed, and there is a real punishment component that needs to be imposed." Gasser also was involved in the MPD body-cavity search scandal, but has never been disciplined by the department, Steinle said. He has received three merit awards and numerous letters of commendation, Steinle said. Steinle told the judge that Gasser was a witness in the body-cavity litigation. A jury in a federal civil suit found he conducted an illegal stop-and-frisk search and U.S. District Judge J.P. Stadtmueller called the actions of Gasser and another officer "reprehensible examples of police misconduct." Steinle said Gasser never denied kicking Rosales. "He, obviously, has lost a lot," Steinle said. "He lost his employment as a result of it, judge." "So, judge, I believe that my client does not need correctional treatment as a result of this," Steinle said. "He's lost his job. He's lost the respect of the community, obviously, and his peers." Gasser, in his statement to the judge, said Rosales was not handcuffed until after Gasser kicked him in the head. "But I did do it," Gasser said. "It was something that I kind of describe it as something that I did it but didn't mean to do. It wasn't an accident. I didn't trip or something like that, but it was – it was just something that I did and could explain why did it. I've never done this before." Gasser said he was under stress at the time and Yang acknowledged that stress, adding "and granted, probably, officers aren't paid enough or well trained enough given the line of work they have to do." However, she said "you were in a trusted position. And that trust is the trust that you will protect the community.… And here a member of the community was Mr. Rosales, the victim in this case. And so the need to protect the public here is great." "Simply saying that you don't know why you did it is not enough because only you are in control of your conduct, and you are the one who makes the decision as to whether you take any corrective measures, whether it's anger management or something else." After reviewing aggravating and mitigating factors, Yang said Gasser's character was "sort of a mixed bag.… And I think what I mean by that really is that, perhaps, your employer could have done more to help provide resources and tools." She set the fine at $500 she said because Gasser was selling his home and moving, which she said were "financial consequences" of his actions. Seventh Circuit revives lawsuit alleging lengthy isolation stays at Copper Lake prison for girls10/10/2018 ![]() By Margo Kirchner The U.S. Court of Appeals for the Seventh Circuit this week reinstated claims brought by two Iowa teens who alleged they were subject to excessive isolation and force when they were housed in Wisconsin’s Copper Lake youth prison for girls. The suit named as a defendant the Iowa official who oversaw placement of Iowa youth in the Wisconsin facility. The opinion was written by U.S. Circuit Judge Joel M. Flaum, who was joined by U.S. Circuit Judges Daniel A. Manion and Ilana Diamond Rovner. Iowa closed its female youth facility in 2014 and contracted with Wisconsin to house at Copper Lake girls found delinquent in Iowa courts. Iowa paid Wisconsin $301 per day per child. Iowa declared Laera Reed and Paige Ray-Cluney delinquent and sent them to Copper Lake in 2015. The girls were 16 at the time. Ray-Cluney says she spent five months in isolation from the end of June until December 15, 2015. Reed says that between August 2015 and February 2016 she spent between 64 and 74 days in isolation. According to Reed and Ray-Cluney, isolation meant spending 22 hours per day in a seven- by ten-foot concrete cell. The cells were stained with urine and contained only a metal cot and thin mattress. A thick cage covered the one window, reducing the light passing through. During their limited daily release from the cells, the girls were allowed only to shower, use the restroom, exercise for 15 minutes, clean their rooms, use 15 minutes to write a letter, or sit in chairs by themselves without speaking. They received little or no educational instruction. Both girls attempted suicide. In August 2017 Reed and Ray-Cluney sued Wisconsin’s Administrator of Juvenile Corrections and several Wisconsin officials associated with Copper Lake. In addition, Reed and Ray-Cluney sued Charles Palmer, director of the Iowa Department of Human Services.
Reed and Ray-Cluney filed their separate lawsuits in the U.S. District Court for the Western District of Wisconsin, alleging constitutional violations arising from excessive use of isolation cells and excessive force. They also alleged intentional infliction of emotional distress and negligence. Reed added violations of the Iowa constitution. The Seventh Circuit appeal involved only the claims against Palmer relating to Copper Lake’s isolation cells. The plaintiffs did not allege that Palmer knew about any use of excessive force. According to the complaints, Palmer contracted with Wisconsin to use the Copper Lake facility, retained legal custody of both plaintiffs, monitored and received reports about plaintiffs’ confinement at Copper Lake, and knew or should have known about Copper Lake’s use of isolation cells. Nevertheless, say the plaintiffs, Palmer failed to remove them from Copper Lake or ensure that Copper Lake properly trained and supervised its staff. In district court, Palmer moved to dismiss based on qualified immunity. U.S. District Judge Barbara B. Crabb agreed with Palmer and dismissed all claims against him. Reed and Ray-Cluney appealed. The plaintiffs’ claims against the Wisconsin defendants were not affected by Palmer’s dismissal. Qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known about, the Seventh Circuit said in its opinion. The doctrine balances the need to hold public officials accountable for their irresponsible conduct and the need to protect them from liability when they perform duties reasonably. Qualified immunity does not protect a public official from suit if a plaintiff shows that the official violated a constitutional right and that right was clearly established at the time of the challenged conduct. To be clearly established, the law must “be sufficiently clear that every reasonable official would have understood that what he is doing violates that right,” said the Seventh Circuit. Judge Crabb believed that even taking the facts alleged in the complaints as true, no law clearly established what action was required of someone in Palmer’s position. The Seventh Circuit held that dismissal was premature. It noted that because the qualified immunity defense depends on the facts of each case, dismissal at an early stage (before discovery) is unusual. Plaintiffs are not required to allege in their complaints detailed facts that anticipate or defeat a qualified immunity defense. Instead, said the court, the plaintiffs need to allege only enough facts to “present a story that holds together.” The Seventh Circuit recognized that under an Eighth Amendment cruel-and-unusual-punishment test based on culpable and serious denial of life’s necessities, the plaintiffs’ allegations held up. The court pointed to a 1974 case involving use of corporal punishment and tranquilizing drugs at a juvenile institution and noted a recent case out of New York holding that juvenile isolation is likely unconstitutional under the Eighth Amendment. Likewise, the Seventh Circuit found that plaintiffs’ allegations met the requirements of a more lenient Fourteenth Amendment due-process test for pretrial detainees. Under Supreme Court caselaw from the early 1980s, restrictions on liberty are permitted only if reasonably related to legitimate government objectives and not for punishment. Thus, said the court, under either test case law clearly established that Palmer’s alleged conduct could violation the Constitution. Crabb had found that unlike the officials in prior cases, Palmer did not himself oversee use of the isolation cells or operate the institution in which alleged abuse occurred. But the Seventh Circuit found that Palmer’s separation from the institution at issue and his lack of personal involvement in placing the girls in isolation did not alter the need for remand. The Seventh Circuit pointed to the special relationship created when a state removes a child from parental custody and to prior case law defining the right of a child in state custody not to be handed over to a custodian that the state knows is a child abuser. On remand, Palmer may reassert other defenses to the case, including his argument that the Wisconsin federal court lacks personal jurisdiction over him. Further, Palmer may obtain qualified immunity on summary judgment if the facts fail to support the plaintiffs’ allegations regarding the extent of their isolation or Palmer’s level of involvement and knowledge. “In the meantime, however,” said the Seventh Circuit, “this case is one that would greatly benefit from a more robust record.” ![]() By Gretchen Schuldt Outagamie Circuit Judge Mark McGinnis insulted a defendant and dropped the Fbomb from the bench during a hearing held partly to determine whether the judge would purge the contempt of court finding he earlier issued against the man. Brian D. Mitchell, sentenced to six months in jail because he rolled his eyes in front of McGinnis, angered the judge again when next they met in court. Mitchell rolled his eyes again. And he picked up some papers, which also angered the judge. The hearing started off well enough but went downhill rapidly after the conversation turned to contempt. McGinnis wanted Mitchell to write an apology, orally apologize in court, and pay a $5,000 fine before the judge would purge the contempt finding. Mitchell was impoverished enough to qualify for representation by the State Public Defender's Office. Mitchell was represented at the hearing by attorney Gary J. Schmidt. Mitchell was not represented by a lawyer when McGinnis first issued the contempt finding. McGinnis already had granted attorney Daniel Muza's request to withdraw. Mitchell, of Milwaukee, was charged with human trafficking. The case was eventually dismissed. Below are excerpts from the June 23 hearing transcript: McGinnis: I will find today that the written apology was appropriate and satisfies one of the purge conditions. I thought that was the written document that you were talking about before, Mr. Sargent. ... Okay. So Mr. Mitchell? Mitchell: Yes. McGinnis: Mr. Schmidt said you wanted to address that issue. Mitchell: Yes. It's my understanding that I was to give a publicized, verbal apology, which I intend to do. I would, first, like to apologize, I mean, to you, judge, your honor, for my suspension on my outburst, and the disrespectful manner in which the Court took it in, the disrespect to the Court that day. I apologize for, I mean, being – – my contemptuous behavior that day on June 6 in the courtroom. As I wrote you in the letter, I intended to apologize and that I actually learned my lesson from that and that I didn't think it would be in my best interests. I thought I would satisfy the Court in a different manner rather than lockup conditions. McGinnis: Anything on that, Mr. Sargent? Sargent: No, your Honor. McGinnis: Mr. Schmidt? Schmidt: Nothing on that point. I think my client has a cash bond, but I think also the Court had sentenced him to six months in the jail on the contempt. So we would ask the Court to lift the six months if he's able to post the cash bond. Then he has that opportunity. Otherwise that's taken away from him. McGinnis: I believe there were three purge conditions, right? The third purge condition has to do with paying a $5,000 amount. Sargent: That's correct. McGinnis: I'm just going on memory. Sargent: That's correct. McGinnis: What is the cash bond amount, Mr. Schmidt? Sargent: $15,000, judge. Sorry. McGinnis: What I think needs to be done, Mr. Mitchell is the following. It's something I think you need to either appreciate or, if you don't appreciate it, at least understand, that is, you know, in this society every day we deal with individuals who are unhappy, disgruntled, emotional, and it's not just defendants. It's attorneys. It's victims, witnesses, police officers; and in order to have a system that runs efficiently or smoothly and is done in a way – – do you need time to get rid of those documents? Mitchell: No. McGinnis: You notice that disrespect that you are showing me in the last 35 seconds? You get that, right? Mitchell: Yes. McGinnis: Okay. It's not showing up on a transcript but that's the type of disrespect that shouldn't exist in a courtroom. And I only say that, Mr. Mitchell, because like I told you last time, I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on. That's okay. You can do it if you want. You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are. "I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on." – Outagamie Circuit Judge Mark McGinnis But what you did the last time here, the disrespect and what I thought and I characterized as an aggressive, inappropriate way, which is different than what you are doing right now, which is contemptuous behavior; and it can't be tolerated by you or by attorneys or by anybody else who comes in here or else this is just going to turn into a complete circus. The last time when you were here and what I was saying before is every day it happens to various degrees, and over 12 years of doing this you just kind of let some of it go kind of like I did for those first 35 seconds when you were doing this today. Those first 15 seconds I'm going to let you disrespect. Then it carried on for 20 or 25 seconds. Eventually I say no, this isn't acceptable; and I'm not saying you have to respect me because you won't and you haven't and that's all right; but you have to respect the environment and the fact that this is a courtroom and there are rules for people to follow and that's what you continue to violate. "You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are." – McGinnis And so before you disrespected me today for this last couple minutes with the way you are looking and the way you are carrying on, I was going to waive that $5,000 purge condition. I thought maybe your apology was genuine. I thought what you had written was sufficient. That's what I said, but it's clear that those are just words and that you don't really mean, and it's an intention that you continue to hope to carry on in the courtroom, which tells me that you don't understand what your role is here. So the contemptuous behavior that happened last time and the purge conditions that I provided will continue. You have satisfied two out of the three conditions. The third condition will remain the same. Anything else, Mr. Sargent? Sargent: No, your honor. Thank you. McGinnis: Mr. Schmidt? Schmidt: I guess I could advise the Court of one other matter which is probably going to come up soon. I did obtain a copy of the transcript from the hearing on June 6. There should be a copy in the Court's file. ... On the – – on the transcript on the bottom of the page 6 there's a discussion between the defendant and the Court. The defendant states, "You have a problem, the way you talk to people." And the court states, "Okay, good. Someday I'm going to sentence you." Then the defendant says, "Probably." The court says, "That's going to be a problem" The defendant, "Maybe." The Court, "– – for you that day." My client has asked me to file a motion to ask the court to recuse himself because of that statement. So I probably will be filing a motion based on that section of page 6 and we probably have to schedule a hearing to come back on that in the future. McGinnis: Go ahead and file it. Maybe include the conversation that we had today because I talked to him about it as well, and you might delay the trial. So you go ahead and file it. When you file it, the State will have 30 days to respond. When they respond, I'll do the research and I'll make my decision. Obviously at first blush I don't think it's an issue. I will highlight those reasons. I am sure you have some legal authority, Mr. Schmidt, that you can cite; I just know Mr. Mitchell understands today, when I said that to you, at the time of sentencing we take into consideration everything we know, everything we've observed including your character. As I said again today, things you do at a hearing, the way you conduct yourself we're not blind to. "He obviously isn't that bright of a guy. That's just the reality for him." – McGinnis So the fact that I will tell you that at a hearing I think is not only appropriate, I think it's best because hopefully a person like you who is smart – – I'm not suggesting that you are – – or that you care – – and I'm not suggesting that you do care – – you would change your behavior or your conduct and you would handle yourself in a different way.
Mr. Mitchell, as he's picking up his papers right now and continues to show that disrespect and is looking away and rolling his eyes and acting in a way that he has for the last couple hearings – – He obviously isn't that bright of a guy. That's just the reality for him. Whether that means I could be fair or that I have some bias against him, whether it's perceived or it's real, I think the record is clear as to what the facts are. So file your motion. Make sure you support, the legal authority. The State has 30 days from whenever that's filed. I'm not sure I'm going to waste my time with a motion hearing on it; but once it's filed, I will read it. If I think it's necessary to have a hearing, I will. Otherwise it will just rule on it at the appropriate time. Anything else Mr. Sargent? Next week: The case falls apart. An Outagamie County judge's justice: 42 days in jail for eye-rolling and paper shuffling – Part I10/8/2018 ![]() 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. Mitchell: Okay. 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. Mitchell: Probably. McGinnis: That’s going to be a problem -- Mitchell: Maybe. McGinnis: -- for you that day. Mitchell: Maybe. 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? Mitchell: No. 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? Mitchell: No. 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. |
Donate
Help WJI advocate for justice in Wisconsin
|