PROSECUTORS SAY VICTIM SHOULD NOT HAVE BEEN EXCLUDED FROM TRIAL UNDER 2020 AMENDMENT TO STATE CONSTITUTION

Revised 2/6/23
By Gretchen Schuldt

​The Milwaukee County District Attorney’s Office is appealing a contempt of court finding against a prosecutor who defied a judge's ruling barring a victim from watching the trial of her alleged assailant until after the victim testified.

The prosecutor, Assistant District Attorney Thomas L. Potter, sent an email to the primary victim in the case – there were two victims – acknowledging that Circuit Judge Kori Ashley issued the sequestration order, then added, “I am nevertheless inviting you to attend the opening statement because I believe Judge Ashley’s order to be inconsistent with Wisconsin law, and wish to have it reviewed by an appellate court.”

Potter argued before Ashley that state law and “Marsy’s Law,” a victims' rights amendment to the Wisconsin Constitution adopted by voters in April 2020, gave victims the right not to be physically excluded from the courtroom, according to a brief filed Wednesday by District Attorney John Chisholm and Assistant District Attorney Julie Knyszek. 

Specifically, Marsy’s Law gives victims the right to “attend all proceedings involving the case” if they ask to do so. It also states that rights given to victims will not infringe on defendants’ federal constitutional rights, such as the right to due process. 

Defendant Arielle A. Simmons, represented by attorney Colleen Cullen, argued that sequestration was justified because the victims were criminal defense lawyers and would be more likely to shape their testimony to fit the state’s theory of the case, according to the brief. Simmons was charged with misdemeanor assault and misdemeanor disorderly conduct in the case.

Ashley, according to the brief, ruled that the “defense theory of the case” made sequestering the victims until after they testified necessary.

After Potter sent the email, he assured Ashley that he was simply trying to preserve the issue for appeal and did not mean to show disrespect. She found him in contempt, as he wanted her to do, and fined him $500. She stayed the fine pending the appeal, according to online court records.

Ashley, the brief said, did not rule on the exclusion issue until right before the start of the trial.

“Only through the finding of contempt was an opportunity for review of victim exclusion made available,” Chisholm and Knyszek wrote. “The release of incriminating information at trial cannot be undone; likewise the improper exclusion of a victim causes irreparable harm, regardless of the outcome of that trial.”

The reason Ashley gave for sequestering the victims was not specific enough, the brief said.

“The only basis for these assertions was that both victims were criminal defense attorneys who have tried cases and were thus aware of the court system,” Chisholm and Knyszek wrote. “Their knowledge and experience in trying criminal cases somehow meant they could not be trusted to testify truthfully. As Potter would argue, the fact that the victims were officers of the court was hardly reason to deny their right to attend the trial; such an ‘employment status’ argument presumed bad faith and made no sense.”

State law also gives victims certain rights to attend proceedings during the testimony of others, they said. Physical sequestration, while it can be useful, “has been strictly limited for excluding victims.” 

“Neither Simmons nor the circuit court cited to a single case, from any court, which held that a witness sitting through a trial, and then testifying, violated a defendant’s federal constitutional right to due process,” they said.

No opposing brief has yet been filed.

Simmons ultimately took her case to trial. A jury acquitted her of misdemeanor battery and convicted her of disorderly conduct, also a misdemeanor. Ashley fined her $400 and made her record eligible for expungement.