The demand by the Wisconsin Association of Criminal Defense Lawyers is for an apology, and there is little question that Circuit Judge David Borowski, if he had any shame at all, should do so. Then again, if he had the proper temperament for being a judge, he wouldn’t be in the situation where he owed an apology.

It began with a urine test by Marcus Wilborn.

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.

There are three critical things to know, and certainly the sorts of things some dolt in a robe should already grasp. First, sometimes a car accident happens, resulting in a fatality, where the person who wasn’t at fault survived and had alcohol and drugs in his system. Much as we leap to the assumption that if there’s alcohol in there, it must be somehow related to the accident. Except sometimes, the sober dead guy was at fault. Whether that was the case here is why we have trials.

Second, sometimes an auto accident results in a dented fender. Sometimes it results in death. Sometimes, it’s because of horrific conduct. Sometimes, it’s just a mundane crash with a horrific outcome. That an accident results in death doesn’t change the nature of the underlying conduct, even if the result is far more tragic.

And third, we rely on tests, like drug and urine, that aren’t necessarily reliable.

Wilborn was represented by public defender Puck Tsai as ADA Michael Lonski sought modification of bail, which was hardly necessary given Borowski’s calling it “shocking” and “preposterous” that he was out on signature bond for a homicide. Tsai did his job, his best, to defend his client.

“Judge, this is – judge, I wasn’t able to finish any one complete sentence,”  Tsai said moments before being handcuffed and led away. “That’s fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court 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.”

And the punchline is that Wilborn was retested, and his urine test came back clean. Oops.

There are levels of wrong here, the top being that this isn’t how summary contempt happens, regardless of whether it’s the right or wrong exercise of power by a judge.

The State Supreme Court, in a decision written by Chief Justice Nathan Heffernan, addressed the issue in 1987.

“Because the summary contempt procedure involves imposition of a punitive sanction, not a remedial sanction, its purpose is, by definition, punishment. …”  Heffernan wrote for the court. “Therefore, it is appropriate that a contemnor should have the opportunity, similar to a criminal defendant, for allocution before punitive sanctions are imposed. The contemnor may well have something to say that mitigates, if not explains away, the contumacious act. …”

Contempt isn’t just a judge losing control of his worst impulses, but a process, much like any other that’s supposed to happen in a courtroom, where the notice and opportunity to be heard precede punishment.

But this procedural failure, and it was clearly a failure, masks a far more troubling failure by Judge Borowski. Puck Tsai was defending his client, and not only did Judge Borowski not feel like hearing from him, but was outraged by the fact that he did exactly what he should have done, what the law permits him to do, what his duty required him to do: argue his client’s cause. Even if Tsai was wrong, he was absolutely entitled as a matter of law to give it a try. And as it turned out, Tsai wasn’t wrong.

Borowski didn’t care for the way Tsai was doing his job? Tough nuggies. This wasn’t a situation where the defense lawyer was given the opportunity to make his argument in full and, nonetheless, lost. That happens. But his making his argument in the first instance infuriated the judge.

Rolling your eyes, throwing your hands in the air, acting like I’m some kind if idiot…

The question isn’t whether this happened, and if it did, whether this was a good approach to achieving the outcome sought by his client. As for the “some kind of idiot” perception, that’s entirely on the judge. Had Tsai called the judge an idiot, there would be consequences, but he didn’t.

That the judge took that away from his argument speaks to the judge’s attitude to an attorney arguing his cause in contrast to the judge’s prejudice, that Judge Borowski already expressed his outrage at the signature bond, much as a biased prosecutor would have approached the hearing rather than the neutral magistrate a judge is expected to be.

There are three primary requirements of a judge, competence, integrity and judicial temperament. Borowski blew all three. He came at the defense prejudiced against Wilborn. He failed to recognize that there was merit to Tsai’s argument, and a lack of merit to the efficacy of urine tests, but most outrageously, lacked the ability to control his impulses, his frustration at an advocate trying to argue his cause when the judge already had made up his mind. Borowski just couldn’t control himself, and put public defender Puck Tsai in jail for doing his job.

Circuit Judge David Borowski absolutely owes Tsai an apology, and reversal of his holding him in summary contempt. That should be the last thing Borowski ever does as a judge. No one who  has the impulse control of a child should be permitted to exercise judicial authority.

H/T Chris Van Wagner