Bruce Vielmetti

Milwaukee Journal Sentinel

The backlash continued Monday over a Milwaukee County judge's decision to briefly jail an assistant public defender Friday over a perceived lack of respect and decorum.

News of the incident spread quickly among the criminal defense bar via social media on the weekend and prompted a strong response from the State Public Defender's office spokesman, Randy Kraft.

UPDATE:Defense lawyers group calls for judge apologize or resign over jailed lawyer

"The fact that our attorney was taken into custody, handcuffed, and belly-chained for doing his job is unacceptable," Kraft said in an emailed statement.

"The impact on our attorney and his client is of utmost concern to this agency. The message this action sends to our attorneys, whose jobs are to be zealous advocates for the rights of their clients, undercuts a basic tenet of our justice system."

Reached over the weekend, Circuit Judge David Borowski declined to discuss the still-pending case but said a transcript of the exchange that led to the lawyer's detention would be available Monday.

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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 Friday, Justice Point reported a violation. According to the Wisconsin Justice Initiative, 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.

Debate over bail

Assistant District Attorney Michael Lonski asked that a cash bail be imposed; Wilborn's attorney, Assistant Public Defender Puck 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.

"If anything, the state's request is low. Bail is $2,500. This is a homicide. I'm not playing games in this case," Borowski said.

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.

'An awful lot of attitude'

Later, Borowski told another public defender who appeared for Tsai, "Here's what I perceived — an awful lot of attitude."

A short time later, State Public Defender's office supervisors came to court, spoke with Borowski, and Tsai was returned to the courtroom about 15 minutes later — in handcuffs and belly chains.

That was per Milwaukee County Sheriff's Office policy, and Borowski says he ordered the restraints removed as soon as he saw that Tsai had been shackled.

Tsai apologized to Borowski and was released, according to court records.

"Thank you. It's over," the judge said.

'A bad morning'

Borowski also stayed his decision setting $2,500 cash bail until Wilborn could be retested. He was, it was negative, and Borowski reset the cash bail to zero.

"Well, what I can hopefully chalk up to a bad morning, a mulligan, not a very good morning for defense counsel, was not my best morning, certainly not the defendant's best morning," Borowski said.

Wilborn is next due in court Nov. 29 for a status conference.

Chad Lanning, president of the Wisconsin Association of Criminal Defense Lawyers, said despite the judge's attempt to attribute the incident to just a bad day, that's not how it's playing among members.

"The rumblings are this is a pattern, something that can't continue," Lanning said. "You can't throw lawyers or litigants in jail for slights."

Milwaukee County's chief judge, Maxine White, could not be reached for comment Monday, and her office said White would be out of town the rest of the week.

Borowski has been a circuit judge since 2003 and has been re-elected twice to six-year terms, the current one running until 2021. He returned to the major felony division in August, after a stint in probate.

Both in probate and during prior assignments handling major felonies, Borowski has always been quick to address any perceived lawyer misconduct or ethical or etiquette lapses. He has ordered contempt detentions for parties in probate cases and a lawyer in a high-profile fetal-abduction homicide case.