By Gretchen Schuldt
Circuit Judge David Borowski should resign if he does not apologize and remedy the error he made last week in finding an assistant state public defender in contempt of court, an organization representing Wisconsin defense lawyers said Tuesday.
The Wisconsin Association of Criminal Defense Lawyers said Borowski should vacate the contempt finding against Assistant State Public Defender Puck Tsai, who was handcuffed and detained in a cell after the judge said Tsai rolled his eyes and threw his arms up.
Borowski did not give Tsai an opportunity to speak before having him incarcerated, even though the right to speak before contempt sanctions are imposed is well-established in Wisconsin.
The case in which Tsai was involved is expected to be recalled soon so the parties can deal with any outstanding issues.
WACDL, in a statement released Tuesday afternoon, said Borowski failed to follow the correct procedure for finding someone in summary contempt.
"At best, Judge Borowski did not understand or correctly apply the law of summary contempt and should be required to explain and rectify his actions," the organization said.
WACDL President Chad Lanning said the statement referred to Borowski's failure to immediately provide Tsai with an opportunity to speak to the contempt finding and Borowski's failure to specify the terms of the sanction before ordering Tsai into custody.
WACDL called for Borowski to vacate the contempt finding and issue an order stating the finding was made in error. WACDL has about 475 members statewide.
The proposed order "should specifically state that the original finding of contempt and detention of Tsai was in error, there was no basis for same, and should not have been made. The order should also state that the erroneous contempt finding and detention should in no way be viewed to adversely or negatively impact Tsai for any purposes in the future, e.g., employment, any professional licensing, applications for insurance or public office."
"If Judge Borowski does not remedy what occurred and apologize - then he should resign immediately because he does not fully appreciate the limits placed on judicial powers," WACDL said.
The statement also said that "WACDL continues to investigate this matter and other allegations it has received where Judge Borowski allegedly failed to demonstrate proper judicial temperament, failed to demonstrate the proper understanding of the limits of his judicial powers, and failed to provide litigants appearing before him with the due process which the law requires they receive. "
Borowski declined to comment.
Tsai was in court for a bail hearing Friday for Marcus Wilborn, who was charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it.
Borowski, clearly unhappy that Wilborn was out on a signature bond, agreed with a prosecutor's request to set a cash bail at $2,500. He found Tsai in contempt after Tsai tried to argue on behalf of his client.
"Judge, this is – judge, I wasn't able to finish any one complete sentence," Tsai said moments before being handcuffed and led away. "That's fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court an innocent person."
"No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt."
The judge continued: "Rolling your eyes, throwing your hands in the air, acting like I'm some kind if idiot gets you locked up for contempt. We'll discuss purge later. In the meantime he sits in custody."
The prosecutor on the case - not Borowski or court staff – notified the State Public Defender's Office that Tsai was in custody. Tsai was returned to court in chains, as is customary for criminal defendants, when SPD supervisory lawyers appeared on his behalf. The chains were removed.
He was released from custody that day, as was his client, whose re-test came back clean.
Wisconsin precedent states that people accused of contempt should have the right to speak before sanctions are imposed. Borowski did not provide Tsai with an opportunity to do so until the other SPD lawyers were present, according to a transcript of the hearing.
"Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court." - American Bar Association
The State Supreme Court, in a decision written by Chief Justice Nathan Heffernan, addressed the issue in 1987.
"Because the summary contempt procedure involves imposition of a punitive sanction, not a remedial sanction, its purpose is, by definition, punishment. ..." Heffernan wrote for the court. "Therefore, it is appropriate that a contemnor should have the opportunity, similar to a criminal defendant, for allocution before punitive sanctions are imposed. The contemnor may well have something to say that mitigates, if not explains away, the contumacious act. ..."
The case arose out of case involving jury selection for a drunk driving trial. Bruce Currie had been dismissed from the jury pool after stating during that his brother had been "murdered by a drunk driver" and that he did not like anyone in the Washington County District Attorney's Office. Passing the defense table on his way from the courtroom, Currie whispered "I hope they hang you" to the defendant.
Washington Circuit Judge James B. Schwalbach dismissed the jury panel, granted a defense motion for a new panel, and fined Currie $1,000.
Heffernan also quoted the U.S. Supreme Court: "Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his "liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.'"
(Full disclosure: Currie was represented on appeal by WJI Board member Robert Lerner.)
Another Wisconsin Supreme Court case involved an attorney, Roseann Oliveto, who was fined $250 after a Crawford County judge heard her call an order he had just handed down "ridiculous."
This 1995 opinion also was written by Heffernan. The State Supreme Court said the contempt finding was appropriate, but said Circuit Judge George S. Curry erred when he did not provide Oliveto a right to speak. The court threw out Oliveto's fine.
"The right is so basic that it will not be inferred from the record," Heffernan wrote. "The right must be exercised after the court has made its finding of contempt but before punishment is imposed, thereby permitting the judge to vacate the contempt order entirely or to give a more lenient sanction, after considering any mitigating factors revealed in the allocution."
He continued: "Due process and concepts of fundamental fairness are satisfied when the record following a summary contempt proceeding demonstrates all of the following: (1) a statement indicating the judge's decision to hold a person in contempt as well as the factual basis for the holding; (2) a statement from the judge informing the contemnor of the right of allocution and a further statement inviting the contemnor to exercise that right prior to imposition of sanction; and (3) the judge's final decision to impose sanction and the sanction, if any, is imposed."
American Bar Association standards call for judges to allow allocution by the person accused of contempt.
"Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court," the ABA says in its commentary on Standard 6-4.5 (ABA Standards for Criminal Justice: Special Functions of the Trial Judge)
"Although in an extraordinary situation an in-court contempt might require punishment without notice of charges or an opportunity to be heard, such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect on the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
Sign up for the free WJI newsletter.
Help WJI advocate for justice in Wisconsin