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.

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.

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.

​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.

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

​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."

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. ​

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.

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.

By Margo Kirchner

​Negligent – even reckless – horseback-riding facilities in Wisconsin are immune from liability for harm they cause customers, the U.S. Court of Appeals for the Seventh Circuit confirmed last week.

The decision addressed two cases.  In the first case, Holiday Stables employees sent Judy Dilley out on a horse without instructions or a helmet, even though Dilley had told a staffer she lacked prior horseback-riding experience. The employees also failed to adjust her stirrups.
​
On the trail, Dilley told the guide riding in front of her that she did not have hold of the reins of her horse, Blue. The guide told her not to worry because Blue, who often carried small children, knew where to go.

After about 20 minutes, Blue attempted to pass the guide’s horse, which kicked at Blue. Blue reared, throwing Dilley to the ground.

Dilley suffered a head injury, fractured ribs and vertebra, and punctured lung.

In the second case, Abigail Brown sued over multiple leg fractures sustained during a riding lesson. Brown took her own horse, Golden Gift, to Country View Equestrian Center in Monroe for the lesson. During the lesson Country View’s instructor allowed a second rider and horse to enter the arena, knowing that the second horse was high spirited. The second horse sped off, bucking and colliding with Golden Gift, tossing Brown from her horse.

Both women were from out of state and so sued in federal court. They lost there and appealed.
The court interpreted the state’s equine-immunity law that, with some exceptions, protects trail operators and riding instructors from paying a rider for injuries.

U.S. Circuit Judge Diane Sykes wrote for the Seventh Circuit panel, joined by Circuit Judges Joel Flaum and David Hamilton.

Under the statute, a person or facility renting out horses or receiving pay for riding lessons is generally immune from civil liability if a participant is injured due to “an inherent risk” of the equine activity.

​"Inherent risk" means “a danger or condition that is an integral part of equine activities” and includes collisions between animals, the unpredictability of a horse’s behavior or reactions to its surroundings, and the potential of a person participating in the activity to act negligently.

Dilley argued that because negligence of a trail operator is avoidable, it is not an “integral part” of horseback riding and thus immunity does not arise. The Seventh Circuit rejected her argument based on the statute’s text.

The court also rejected Dilley’s alternative argument that her case fit a couple exceptions to immunity. One exception permits recovery of damages when a trail operator provides a horse “and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided.”

Dilley argued that the exception applies when the operator “fails to . . . safely manage” a horse, while Holiday argued that the exception applies only when an operator fails to assess “the ability of the person . . . to safely manage” the horse.

With no Wisconsin Supreme Court interpretation of the language on the books, the Seventh Circuit predicted how the state’s high court would rule. Declaring the task “not difficult,” the Seventh Circuit agreed with Holiday’s interpretation.

The exception does not affect immunity for the trail operator’s negligent management of a horse, said the court.

Updated Sept. 12, 2018 to include responses from the State Public Defender's Office and Wood County Circuit Judge Todd P. Wolf.

By Gretchen Schuldt

​Trequelle T. Vann-Marcouex, who turned 18 in April, was facing serious charges when he appeared before Wood County Circuit Judge Todd P. Wolf on Aug. 14 for a preliminary hearing.

Vann-Marcouex was facing a maximum of 65 years in prison for allegedly participating in an armed home invasion and robbery. Vann-Marcouex denied involvement in the crime. He had been in jail for at least 11 days, and he still did not have a lawyer.

He qualified for representation by the State Public Defender's Office (SPD), which provides lawyers for very low-income defendants. A lawyer from that office represented him during his initial appearance, where bail was set at $25,000, but no one had been appointed to handle his case after that.

“I have been calling the Public Defender’s Office every single day, and they make it – I get on the phone with them, and they’d laugh,” Vann-Marcouex said at the end of the preliminary hearing, according to a transcript of the proceeding. “When I called them yesterday and I asked them how is it I don’t have a public defender and I got my court in less than 24 hours, and she is, like, right. How is that an answer, right? How is that an answer?”

“Well, you have to deal with them on that,” Wolf responded. “I can only do the hearings that are before me.”

Wolf also did not appoint a lawyer for Vann-Marcouex, either, even though he should have done so.

"I don't understand how this is enough evidence," Vann-Marcouex said after Wolf bound him over for trial. 

"Okay," the judge responded. "That will be something you can discuss with your attorney."
​
Vann-Marcouex hanged himself in the jail that night. It was the fifth suicide in two years in the Wood County Jail.

SPD spokesman Randy Kraft said the office did not take Vann-Marcouex's case because of a direct conflict of interest and so had to appoint a private bar attorney to take the case.

"Agency staff made approximately 300 calls and emails to private attorneys certified to take SPD cases before an appointment was ultimately made on Aug. 14," Kraft said in an email. "The Order Appointing Counsel was filed with the court on the same day.

"In cases in our more rural counties, the difficulty in locating a private bar attorney is fairly typical," Kraft said. "What is less typical, however, is the court proceeding with a preliminary hearing without the benefit of an attorney.  Defendants benefit from having an attorney with them in court. Attorneys not only have the skills necessary to protect the rights of their clients, but they are also able to guide them through the criminal justice system."

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.

​But Vann-Marcouex, who had never been in serious trouble before, was unrepresented as a prosecutor described the state’s case against him. When he did try to talk, the judge cut him off.

It is impossible to draw a line directly from the young man's lack of representation to his suicide, but a lawyer could have helped Vann-Marcouex deal with the overwhelmingly stressful situation he faced, said Chad Lanning, president of the Wisconsin Association of Criminal Defense Lawyers.

A lawyer can put things in context and "give them that hope that all is not lost," he said. Law enforcement may presume defendants are guilty and treat them that way, or frighten them with worst-case predictions in attempts to scare them straight.

While court and law enforcement officials often emphasize the maximum penalties a defendant faces, a lawyer can give them a more realistic, less dire picture and explain legal defenses and a basic strategy of how they will unfold as the case moves forward.

Vann-Marcouex wanted a lawyer. He just didn't get one, a fact acknowledged by the prosecution.

"I did have a brief off-the-record conversation with Mr. Vann-Marcouex," Assistant District Attorney Leigh Neville-Neil said at the beginning of the preliminary hearing, according to the transcript. "He indicated he applied and qualified for a Public Defender. He has been calling them repeatedly and has not been assigned counsel yet, just so the Court's aware."

"Okay," Wolf responded. "That's my understanding, Mr. Vann-Marcouex, though, in fact, what the Court is required to do by law is to have this preliminary hearing done within 10 days when someone's in custody on a cash bond, such as yourself."

Wolf did not raise the possibility of a court-appointed attorney, nor did Neville-Neil, who is now on leave.

Wolf declined to answer written questions from WJI. Wood County District Attorney Craig Lambert did not respond to written questions.

The lack of legal representation for defendants in criminal cases who cannot afford to hire a lawyer is creating a constitutional crisis in the state. The SPD appoints private bar attorneys to handle cases when it cannot do so because of excessive caseloads or potential conflicts of interest. The low pay the office can offer – $40 an hour, the lowest rate in the nation and not enough to cover the average lawyer's overhead costs – means more and more lawyers are turning down cases. The State Supreme Court earlier this year refused a request to increase the rate.

Judges are supposed to appoint lawyers at county expense at $70 per hour if no other lawyer is available. “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense,” the State Supreme Court said in its order declining to increase the $40 rate.
 
Wolf instead explained that the state would outline its evidence to show probable cause that Vann-Marcouex committed the three crimes with which he was charged:  armed robbery, burglary, and child abuse (a 17-year-old was struck with a gun during the home robbery).

Prosecutors "have to introduce that type of evidence so I feel comfortable enough that the case can proceed with that probable cause finding, so I am going to go through and hear the evidence here today just to see if it meets that standard," he said, according to the transcript. "If it doesn't, the case would get dismissed. If it does, you are in no different position than you were in when you walked in here. ..."

Wolf continued: "You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so because anything you say is being recorded here today on the record and could be used against you, and you clearly wouldn't want to give up your right for self-incrimination by making some statements that could be used against you. Do you understand that then, sir? Do you understand that."

"Yeah," Vann-Marcouex replied.

After Neville-Neil finished questioning an investigating officer, Wolf told Vann-Marcouex he could ask questions, "but again, realize anything you are saying is being taken down and could be used against you."

Later, the judge told Vann-Marcouex that he had a right to present evidence, but "I have to make a decision in the light most favorable to the state, and obviously you'd be giving up any right to self-incrimination if you did so. Do you wish to present any evidence?”

"I mean, I was watching my nephew that night," Vann-Marcouex said. "My sister isn't here right now, I don't see her, but, um –"

The judge cut him off. "You have to present evidence through testimony here, not make an argument, but no attorney would tell you to do that with each of the charges you are facing here because, again, I have to do it in the light most favorable to the State, all right?  Do you wish to present anything now or not?" Wolf said.

Vann-Marcouex shook his head.

That was his last court appearance.

It was the same day he got his lawyer.

That same night, jail staff found him in his cell, where he apparently tried to hang himself. He died a few days later. ​

Margo Kirchner contributed to this story.