y 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.

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.