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?
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?
McGinnis: You notice that disrespect that you are showing me in the last 35 seconds? You get that, right?
McGinnis: Okay. It's not showing up on a transcript but that's the type of disrespect that shouldn't exist in a courtroom. And I only say that, Mr. Mitchell, because like I told you last time, I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on. That's okay. You can do it if you want. You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are.
"I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on." – Outagamie Circuit Judge Mark McGinnis
But what you did the last time here, the disrespect and what I thought and I characterized as an aggressive, inappropriate way, which is different than what you are doing right now, which is contemptuous behavior; and it can't be tolerated by you or by attorneys or by anybody else who comes in here or else this is just going to turn into a complete circus.
The last time when you were here and what I was saying before is every day it happens to various degrees, and over 12 years of doing this you just kind of let some of it go kind of like I did for those first 35 seconds when you were doing this today. Those first 15 seconds I'm going to let you disrespect. Then it carried on for 20 or 25 seconds. Eventually I say no, this isn't acceptable; and I'm not saying you have to respect me because you won't and you haven't and that's all right; but you have to respect the environment and the fact that this is a courtroom and there are rules for people to follow and that's what you continue to violate.
"You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are." – McGinnis
And so before you disrespected me today for this last couple minutes with the way you are looking and the way you are carrying on, I was going to waive that $5,000 purge condition. I thought maybe your apology was genuine. I thought what you had written was sufficient. That's what I said, but it's clear that those are just words and that you don't really mean, and it's an intention that you continue to hope to carry on in the courtroom, which tells me that you don't understand what your role is here.
So the contemptuous behavior that happened last time and the purge conditions that I provided will continue. You have satisfied two out of the three conditions. The third condition will remain the same. Anything else, Mr. Sargent?
Sargent: No, your honor. Thank you.
McGinnis: Mr. Schmidt?
Schmidt: I guess I could advise the Court of one other matter which is probably going to come up soon. I did obtain a copy of the transcript from the hearing on June 6. There should be a copy in the Court's file. ... On the – – on the transcript on the bottom of the page 6 there's a discussion between the defendant and the Court.
The defendant states, "You have a problem, the way you talk to people."
And the court states, "Okay, good. Someday I'm going to sentence you."
Then the defendant says, "Probably."
The court says, "That's going to be a problem"
The defendant, "Maybe."
The Court, "– – for you that day."
My client has asked me to file a motion to ask the court to recuse himself because of that statement. So I probably will be filing a motion based on that section of page 6 and we probably have to schedule a hearing to come back on that in the future.
McGinnis: Go ahead and file it. Maybe include the conversation that we had today because I talked to him about it as well, and you might delay the trial. So you go ahead and file it. When you file it, the State will have 30 days to respond. When they respond, I'll do the research and I'll make my decision.
Obviously at first blush I don't think it's an issue. I will highlight those reasons. I am sure you have some legal authority, Mr. Schmidt, that you can cite; I just know Mr. Mitchell understands today, when I said that to you, at the time of sentencing we take into consideration everything we know, everything we've observed including your character. As I said again today, things you do at a hearing, the way you conduct yourself we're not blind to.
"He obviously isn't that bright of a guy. That's just the reality for him." – McGinnis
So the fact that I will tell you that at a hearing I think is not only appropriate, I think it's best because hopefully a person like you who is smart – – I'm not suggesting that you are – – or that you care – – and I'm not suggesting that you do care – – you would change your behavior or your conduct and you would handle yourself in a different way.
Mr. Mitchell, as he's picking up his papers right now and continues to show that disrespect and is looking away and rolling his eyes and acting in a way that he has for the last couple hearings – – He obviously isn't that bright of a guy. That's just the reality for him. Whether that means I could be fair or that I have some bias against him, whether it's perceived or it's real, I think the record is clear as to what the facts are.
So file your motion. Make sure you support, the legal authority. The State has 30 days from whenever that's filed. I'm not sure I'm going to waste my time with a motion hearing on it; but once it's filed, I will read it. If I think it's necessary to have a hearing, I will. Otherwise it will just rule on it at the appropriate time. Anything else Mr. Sargent?
Next week: The case falls apart.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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