Milwaukee County Circuit Judge David Borowski should vacate his contempt of court finding against a lawyer whom he had handcuffed and detained or finalize the contempt order so the State Public Defender's Office can appeal it, an SPD official said in a letter dated Tuesday.
Borowski had accused Tsai of rolling his eyes, throwing his hands in the air, and treating the judge like an idiot.
A draft order submitted for Borowski's signature by SPD Deputy Regional Attorney Manager Paige Styler 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."
"If you are not willing to sign this order then we will send you a final order for contempt so that the order can be appealed," Styler wrote in her letter.
She continued: "It is of utmost importance to us that Attorney Tsai's reputation be restored. We expect that Attorney Tsai will be treated respectfully and professionally by the courts and their staff.
"We know you have asked if you can apologize to him and ask that your correspond with him in writing," Styler wrote. "We believe it would go a long way in restoring the relationship and allowing everyone to move forward."
Borowski found Tsai, an assistant state public defender, in contempt during a hearing Oct. 26. He was not released until supervisors from the SPD, alerted to the arrest by the prosecutor on the case, arrived in court.
"We know you have asked if you can apologize to him and ask that your correspond with him in writing. " – Deputy Regional Attorney Manager Paige Styler
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 contempt incident occurred during a bail hearing 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 told Borowski that Wilborn was "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 chaining and detention of Tsai infuriated defense lawyers, who first vented on social media and then, through the Wisconsin Association of Criminal Defense Lawyers, called on Borowski to either apologize or resign.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
Sign up for the free WJI newsletter.
Help WJI advocate for justice in Wisconsin