Judge vacates contempt finding
Decision to have lawyer detained in bail argument generated immediate backlash from attorney groups
A Milwaukee County judge on Friday vacated a contempt finding against an assistant public defender and recused himself from the case, a fatal traffic crash.
Circuit Judge David Borowski’s decision to have Puck Tsai briefly detained Oct. 26 generated an immediate backlash from the State Public Defender’s Office and the criminal defense bar in general.
Last week, the Wisconsin Association of Criminal Defense Lawyers called for Borowski to formally vacate the finding of contempt and apologize or resign.
On Friday, Borowski vacated the contempt findings, but the record does not indicate he apologized. The hearing had not been noticed earlier in the case docket.
Tsai’s supervisor had suggested in a letter to the judge Tuesday that that might best be done in writing directly to Tsai, who was not present for Friday’s hearing.
“It is of utmost importance to us that Attorney Tsai’s reputation be restored,” State Public Defender supervisor Paige Styler wrote.
“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 (we) ask that you correspond with him in writing.
“We believe it would go a long way in restoring the relationship and allowing everyone to move forward.”
Borowski also recused himself from any further role in the underlying case. It is now assigned to Circuit Judge Mark Sanders. The next court date is a status conference Nov. 29.
The State Public Defender’s Office issued a statement that it was pleased that Borowski vacated what it called an erroneous finding of contempt.
Chad Lanning, president of Wisconsin Association of Criminal Defense Lawyers, echoed that sentiment.
“WACDL will continue to promote the proper administration of criminal justice, foster and maintain the integrity and independence of the criminal defense bar,” he said.
Bail issue set off tempers
Marcus Wilborn, 32, was charged in August with homicide by negligent operation of a motor vehicle for a June 2017 two-car crash near North 30th Street and West Lisbon Avenue. He struck another driver broadside an the intersection. Wilborn’s blood showed an alcohol level of 0.11 and a significant presence of THC, the active ingredient in marijuana.
He had been free on a $50,000 signature bond since August. One of his conditions of release is maintaining absolute sobriety.
On Oct. 26, Justice Point, a nonprofit agency that provides pretrial services to the courts, reported a violation after a urine screen had come back with a high level of water, which can suggest but does not prove that a subject may have tried to tamper with a testing or result.
Assistant District Attorney Michael Lonski asked that cash bail be imposed; Tsai argued against the requested bail modification.
According to a transcript of the hearing, Borowski seemed inclined to add the cash bail from the get-go. He called it “shocking” and “preposterous” that Wilborn was on a signature bond for a homicide case. He imposed bail of $2,500, which meant Wilbron would stay in jail at least over the next weekend, if not until his case resolved.
While Tsai, a 2014 graduate of University of Wisconsin Law School, was arguing that the victim was really at fault in the crash and Wilborn has statutory defenses, Borowski cut him off, telling him the possible defenses have nothing to do with a bail decision. “Let’s all stop talking.”
As the clerk was looking for the next court date, Borowski had the deputy return Wilborn to his seat, then told Tsai to sit down. “Is there something you want to say, or do you want to go into custody?”
That’s when Tsai said he wanted to highlight that Wilborn is innocent at this stage.
“No kidding. I get that. Sit down,” Borowski said, then, “Counsel, if you don’t knock —” then ordered him taken into custody before finishing his sentence.
“Rolling your eyes, throwing your hands in the air, acting like I’m some kind of idiot gets you locked up for contempt,” Borowski told Tsai.
Supervisors from Tsai’s office appeared within minutes and when Tsai was returned to the courtroom he was in handcuffs and shackles, per Milwaukee County sheriff’s policy. Borowski said he immediately ordered the chains removed when he saw that Tsai was restrained.
According to a transcript of the Oct. 26 proceedings, Borowski attributed the dust-up to the morning not being “the best day” for anyone involved.
Later the same day, Wilborn had a negative urine screen and Borowski vacated his cash bail and restored him to the prior signature bond and conditions.