By Gretchen Schuldt

Shorewood Police Sergeant Cody J. Smith took action after Jonah Marciniak was found hanging in his cell during the early morning hours of Aug. 15, 2016.

First, Smith performed CPR. Then he doctored a Police Department document to show that he checked on Marciniak at 4:10 a.m., when he had not. Smith did not check on Marciniak during the 46 minutes from 3:33 a.m. to 4:19 a.m., when Smith found the 39-year-old inmate hanging.

Then he lied about checking on Marciniak. And lied. And lied. He lied to officers from the Greenfield Police Department, called in to investigate the death, on three separate occasions between Aug. 15 and Aug. 31,   2016, according to a criminal complaint. Smith admitted the truth only after he was confronted with a surveillance video clearly showing that he hadn't checked on Marciniak at 4:10 a.m.

Smith was fired and was charged with one misdemeanor count of obstructing an officer. It took until March 23,  2017, seven months after the hanging, to issue the complaint, but the case got wrapped up very quickly -– within five days – after that.

Smith was sentenced on March 28, 2017 to one day in jail. Because he had gone through the booking process, his jail sentence was considered already served, according to a transcript of the sentencing hearing. Milwaukee County Circuit Judge Jean Kies also fined Smith $500.

He remains in law enforcement today.

"I think the conviction is appropriate, given the tremendous lapse in judgment that this presents," prosecutor Benjamin Lindsay said at Smith's sentencing hearing. "An officer -- We rely on officers for their credibility, and that is something that is -- There's a level of community trust there. There's also trust that the Court places and our office places."

Smith was very busy the night of the hanging, defense lawyer Michael Steinle said at the sentencing hearing.

Smith "has no prior record," Steinle said. "He doesn't have anything in his personnel file. This is -- It is just one of those sad situations that he just made a bad judgment to make that entry, and he didn't have to. That's the sad part about it. As -- But when push came to shove, he did correct it, Judge, and he was too late. He had already told the -- Greenfield that, in fact, he had checked when he didn't."

A federal court lawsuit filed over Marciniak's death says that Smith failed to follow Shorewood Police Department policy, which requires visual checks of jail inmates every 30 minutes and of mentally unstable inmates – which the suit says Shorewood police knew Marciniak was was – every 15 minutes.

By Gretchen Schuldt

A Milwaukee police officer testified he would invite traffic stop subjects into his squad car if the stop was in the Downtown police district, but not if it was in a central city or North Side district.

Officer Froilan Santiago made the statements during a 2017 deposition taken during a Federal Court lawsuit alleging that Santiago used excessive force during a traffic stop. The suit is pending.

"So then getting back to my question," attorney Nathaniel Cade, Jr. asked Santiago, "how many times since 2006 have you initiated a stop of someone and suggested that they get out of the vehicle and get into the front seat and look at the computer?"

"Now, like I said, District 7, I wouldn't do," Santiago said. District 7 headquarters is at 3626 W. Fond du Lac Ave. on the city's North Side.

"Depends on the situation and environment," he continued. "District 1 is a different type of environment where it's more of people as far as the -- more able to communicate and more different lifestyle of the individual based on our training in District 1 -- or based on what -- my experience at District 1, it's a lot more common than if I was at District 7. "

District 1, Downtown, is headquartered at 749 W. State St.

He continued: "District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5."

District 5 is based at 2920 Vel R. Phillips Ave. 

"District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time. I don't know," Santiago said. "Like I said, it's just discretion of the individual of what's going on."

"So you're profiling the driver of the vehicle based on the district that you're in because it's more likely that if they're in a poor neighborhood, that it's drugs and guns?" Cade asked.

"You asked me how I'm going to perform my traffic stop," Santiago responded.

The plaintiff in the lawsuit, Jimmy Harris, alleges that Santiago in November 2010 stopped the car Harris was driving and asked him to get out of the vehicle. Santiago said he stopped the car because it was black and the color listed on DMV records as gray. It was about 4:45 p.m. and dark at the time of the stop.

The same mistake about the car's color had been made previously, according to the suit, and Harris offered to show Santiago on the squad computer how the error was made. Santiago accepted, but then "suddenly grabbed Mr. Harris' left arm that had recently been operated on and used it to maneuver Mr. Harris..."

This 29-minute video shows parts of Harris' encounter with police.

By Gretchen Schuldt

​A 39-year-old man hung himself in the Shorewood jail after police detained him without reason, searched him improperly, locked him in a cell alone despite knowing he suffered from mental illness,  and failed to check on him in a timely manner, according to a Federal Court lawsuit filed Friday.

The suit was filed by the son and estate of Jonah Marciniak, who died on Aug. 21, 2016. Izariah Jump, Marciniak's son, was 16 years old at the time.

The suit alleges false arrest and unlawful detention, unreasonable search, deprivation of due process, failure to provide medical care, failure to protect from self-harm, and wrongful death. 

According to the suit:

Shorewood police responded to a Marciniak drug overdose on Aug. 12, 2016. Marciniak told them then that he suffered from depression. The next day, his roommate, Eric Harper, told police that Marciniak had overdosed and attempted suicide previously and suffered from several kinds of mental illness, including depression, anxiety and bi-polar disorders.

Two days later, Harper fell out of a fourth-floor window. When police responded, they tried to gain access to the apartment that Harper fell from so they could check on the welfare of anyone inside. They rang the buzzer and pounded on the door but received no response. The North Shore Fire Department eventually gained access.

Two defendants in the suit, Police Officers Cody J. Smith and Nicolas Taraboi found Marciniak naked, face down on a bed after a "loud search" of the rest of the apartment. Smith also had responded to the drug overdose days earlier.

"Jonah had very shallow breaths and did not respond to the SPD police officers’ multiple attempts to wake him," the suit says. "The SPD police officers screamed commands at Jonah, but there were no movements from him."

Smith recognized Marciniak when they rolled him onto his back, according to the suit. 

"It was obvious to all present that Jonah was impaired," the suit says.

By Gretchen Schuldt

​Federal prosecutors send staff members to the Milwaukee County District Attorney's office to look through gun cases to determine which ones should go to the tougher federal system, according to federal court filings.

Milwaukee County, home to the largest share of African Americans in the state, is the only county of the 28 counties in the Eastern District of Wisconsin to get that personal touch from the U.S. government, according the filings by Assistant Federal Defender Joshua D. Uller.

The practice results in a disproportionately large share of African Americans getting charged with certain gun crimes, he said.

Some 50 percent (90 of 176) of the people charged with drug-trafficking offenses in the Eastern District were Black during the period from January 2017 through June 2018, though the district is just 10 percent African American, according to Uller's filings. Whites accounted for just 23 percent of people charged with drug trafficking, though the district is 84 percent White.

Thirty-five of the drug trafficking defendants also were charged with possessing a firearm in furtherance of the crime. Twenty-eight, or 80 percent, of those defendants were Black. Three, or 9 percent, were White, he said.

The firearm charge carries a mandatory minimum of five years in prison, which must be served consecutively to any other sentence.

And 100 percent of the 10 cases alleging possessing a firearm in furtherance of a marijuana trafficking crime were brought against minorities. Nine were filed against Black defendants originally arrested by Milwaukee police. The 10th minority was an Arab, Uller said. (Arabs are legally considered White.)

Uller says the charging disparity demonstrates selective prosecution and enforcement. He is asking a federal judge to allow the Federal Defenders Office to examine materials from the U.S. Attorney's Office that provide more evidence about how cases are selected for federal prosecution.

​Prosecutors deny any selective prosecution or enforcement and U.S. Magistrate Judge Nancy Joseph has recommended Uller be denied access to the materials he wants.

By Gretchen Schuldt

​A judge erred when he said that sperm DNA evidence helpful to the defendant in a sexual assault case was inadmissible under the state's rape shield law, the State Court of Appeals has ruled.

The shield law disallows evidence of a sexual assault victim's sexual history because of its prejudicial effect.

"In general, 'all relevant evidence is admissible,'” the panel said, quoting state law.  The case now heads back to Sauk County Circuit Court.

The unsigned decision by the District IV Court of Appeals panel reversed a ruling by Circuit Judge Todd J. Hepler, who barred sperm DNA evidence that excluded defendant Juan L. Walker as the source of sperm found on the victim's bed sheet. 
​
Hepler said the sperm was evidence of "prior sexual conduct" of the victim, Katherine, or someone else, and thus was inadmissible under the rape shield law.

Defendant Walker also was excluded as the source of other, non-sperm DNA evidence, but Hepler also ruled that evidence inadmissible.

Hepler said the absence of Walker's DNA on the sheet "does not necessarily equate to the absence of Mr Walker at the scene. Simply because there is no DNA there on that particular bed sheet does not necessarily mean that Mr. Walker was not there. The presence of another's DNA doesn't equate to the absence of another's DNA either."

The victim, identified only as Katherine, had been drinking before the assault, according to the appeal panel. Two friends helped her after she vomited outside a Lake Delton restaurant. Walker, whom none of the three had met before, stopped, offered to help, and eventually gave them a ride to Katherine's home, according  to the appeals panel, which included Appeals Judges Paul Lundsten, Brian Blanchard, and Michael R. Fitzpatrick.

By Margo Kirchner

​A federal judge’s refusal to delay trial for two years so that “Coupon King” Thomas (Chris) Balsiger could be represented by a particular lawyer did not violate Balsiger’s right to counsel, a federal appeals court ruled last week.
 
The ruling means that the 10-year federal criminal case against Balsiger will not be retried.  The U.S. Court of Appeals for the Seventh Circuit affirmed the bulk of Balsiger’s conviction and sentence with the exception of a recalculated forfeiture amount.
 
Balsiger ran International Outsourcing Services, one of the nation’s largest product-coupon processors, in El Paso, Texas, and Bloomington, Indiana.
 
He and 10 others were indicted in 2007 on 25 counts of wire fraud, conspiracy to commit wire fraud, and conspiracy to obstruct justice. The fraud allegations involved coupon payments made by Wisconsin manufacturers Sargento Foods, Good Humor/Breyers Ice Cream, Kimberly-Clark, LeSaffre Yeast, and S.C. Johnson & Sons. The indictment alleged that the wire-fraud scheme caused $250 million in losses to manufacturers.
 
Pretrial proceedings dragged on for years. During that time, in July 2014, Balsiger’s lawyer, Joseph Sib Abraham, passed away.
 
U.S. District Judge Charles N. Clevert, Jr. was notified in August 2014, and a lawyer who worked with Abraham said Balsiger expected to hire new counsel within 30 days.  Yet by early December 2014 no new attorney had appeared in the case and Balsiger claimed he could not then hire a new attorney due to financial difficulties.
 
Clevert set trial for October 2015.
 
At a status conference in early January 2015 Balsiger told Clevert he planned to hire El Paso attorney Richard Esper, and asked for a deadline of April 1, 2015, to hire Esper. Balsiger said he did not have sufficient funds and could not sell his home because of a filing the government made against the property.
 
Clevert soon learned that Esper could not be ready for trial until 2017 at the earliest. The judge also found that Balsiger could afford to hire a lawyer and ordered him to hire someone by Feb. 17, 2015.
 
The court found that Balsiger was not working diligently to hire counsel and warned that failure to hire an attorney would be considered a waiver of the right to counsel.

By Gretchen Schuldt

​Holding preliminary hearings without legal representation for poor defendants was "the practice" in Wood County when a defense lawyer wasn't immediately available, an assistant public defender told a reserve judge in March.

A second preliminary hearing could be held when a lawyer was eventually found, attorney Michael Scarantino explained to Reserve Judge Frederic Fleishauer, according to a transcript of the hearing.

The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings. The U.S. Supreme Court also has ruled that defendants are entitled to counsel at their "prelims."

There hearings are held to determine whether there is enough evidence to bind a defendant over for trial.

Defense attorney Hank Schultz, a past president of the Wisconsin Association of Criminal Defense Lawyers (WACDL), said it is "unconscionable that anyone in this system would condone proceeding without an attorney," especially after one had been requested.

Harm done to an unrepresented defendant during a preliminary hearing "can't be undone even if you have a second preliminary hearing," he said.

By Gretchen Schuldt

Milwaukee County Circuit Judge Janet Protasiewicz in January will assume the homicide / sexual assault caseload now assigned to Circuit Judge David Borowski, who will move to misdemeanors, Chief Judge Maxine White announced last week.

Borowski recently was involved in a controversy over a contempt of court finding he made against Assistant State Public Defender Puck Tsai, a finding that sparked outrage among the defense bar and that Borowski ultimately vacated.

Borowski will take over the calendar of Circuit Judge Jean M. Kies, who will oversee the misdemeanor / domestic violence court that now belongs to Circuit Judge Mary Kuhnmuench, who is retiring.

The changes take effect Jan. 7.

Other rotatations announced by White:

• Circuit Judge Clare Fiorenza will assume the family court calendar now assigned to retiring Circuit Judge Richard Sankovitz.
• Fiorenza's current civil calendar will go to Circuit Judge Carl Ashley.
•  Circuit Judge Cynthia Davis will assume Ashley's drug treatment / deferred prosecution court calendar.
• Davis' misdemeanor and domestic violence calendar will go to Circuit Judge David Feiss.
• Circuit Judge Lindsey Grady will take over Protasiewicz's felony drug calendar.
• Reserve judges will assume the Children's Court calendars now held by Feiss and Grady.

By Gretchen Schuldt

​Milwaukee County Circuit Judge David Borowski on Friday vacated a contempt of court order he issued against defense attorney Puck Tsai and recused himself from the criminal case against Tsai's client.

The order, drafted by Paige Styler, a lawyer with the State Public Defender's Office, says simply, "The contempt of court finding ordered on October 26, 2018 against attorney Puck Tsai in the above-entitled matter was entered in error and is hereby vacated."

Tsai is an assistant state public defender.

"The State Public Defender’s Office (SPD) requested  Judge Borowski vacate his contempt order regarding one of our trial attorneys," SPD said in a prepared statement. "We are pleased that the judge signed that order in a hearing today, noting that the contempt finding was entered in error....We respectfully defer to the judge regarding any questions about an apology."

Borowski declined to comment.

​The judge acted Friday after a hearing that was not even on his calendar as of Thursday afternoon. What was said at the hearing also is not public: "Matter held OFF THE RECORD," said minutes on CCAP, the state's online courts database. 
The case now is assigned to Circuit Judge Mark A. Sanders.

Borowski came under heavy fire from defense lawyers upset that he held Tsai in contempt of court and had him handcuffed and detained in a holding cell. Tsai was brought back to court in chains after a prosecutor – not Borowski or court staff – alerted Tsai's supervisors that he had been detained.

The Wisconsin Association of Criminal Defense Lawyers had criticized Borowski for not following the law when he found Tsai in contempt and called for the judge to apologize or resign.

"We are pleased that Judge Borowski vacated his erroneous contempt of court finding against Attorney Puck Tsai," WACDL President Chad Lanning said Friday. "We were not a party to the court proceedings today and cannot comment on what occurred. WACDL will continue to promote the proper administration of criminal justice, foster and maintain the integrity and independence of the criminal defense bar."

Borowski, in his contempt finding, first said that Tsai, after being cut off in his argument by the judge, was  "rolling your eyes, throwing your hands in the air, acting like I'm some kind of idiot..."

But later, after Tsai was brought back into the courtroom and was represented by attorneys, Borowski said the defense lawyer was "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.'"

Tsai's client is Marcus Wilborn, 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 made clear that he did not think a signature bond was appropriate and granted the prosecutor's request for a $2,500 bond.

Tsai tried to tell the judge there are several reasons a urine test could be diluted, but Borowski cut him off. 

After another unsuccessful attempt to make a point, Tsai said, "Judge, this is – judge, I wasn't able to finish any one complete sentence. 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."

Borowski did not allow Tsai an opportunity to allocate before he had Tsai taken away, although a requirement to do so is well-established in Wisconsin.

Tsai was released that day. Wilborn was released the same day, after a second urine test came back clean.

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.

​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.