A Milwaukee County prosecutor who deliberately provoked a judge into finding him in contempt of court lost on Tuesday his bid to have that finding overturned by the state Court of Appeals.
Assistant District Attorney Thomas Potter deliberately defied Circuit Judge Kori Ashley's order that two alleged victims in a misdemeanor assault case could not watch the defendant's trial until after they testified. Potter said he thought Ashley's order violated Marsy's Law, the so-called victim's rights amendment to the state constitution in April 2020.
He then appealed the contempt order he invited.
"In effect, Potter is attempting to collaterally attack the circuit court’s sequestration order by appealing the court’s order finding him in contempt for violating the sequestration order," District I Appellate Judge Timothy Dugan wrote. "This court concludes that he cannot do so and affirms the circuit court’s order finding him in contempt."
While Marsy's Law allows victims to be in the courtroom, Ashley found that it was not an absolute right, Dugan wrote in his decision. Ashley found that "under Marsy’s Law, a victim’s constitutional rights are not intended and may not be interpreted to supersede a defendant’s 'federal constitutional rights, namely a right to a fair trial.'" Ashley said the alleged victims could not watch proceedings until after they testify.
Despite the sequestration order, Potter invited one of the witnesses by email to court to hear the opening statements and other portions of the case because Potter thought the order was inconsistent with the law and he wanted to appeal it.
Potter also made clear that he was inviting a contempt finding. “By sending this email I have put myself in defiance of the [c]ourt’s order, and I did that intentionally with the understanding that the [c]ourt would appropriately find me to be in contempt of that order,” he wrote.
Ashley fined him $500.
In his appeal, Potter argued that his defiance of that Ashley's order presented the only meaningful opportunity to review it; he had a duty under state law and the state constitution to protect the rights of the victims; the order was in direct violation of state law and the state constitution; and the order was void because Ashley did not have the authority to issue it.
Potter cited a U.S. Supreme Court case, Maness v. Meyers, in which the court, in reversing a lawyer's contempt conviction, ruled that compliance with a judge's order would cause "irreparable harm." Potter said the precedent allowed him to disobey Ashley's order. Dugan, though, agreed with Ashley that the two cases were materially different and Potter could not use the case to attack his own contempt conviction.
Potter also argued that his actions were justified because the issue of the sequestration order would become moot once the trial ended, ending the chance to litigate it.
Dugan agreed that it was moot, but said that higher courts could consider important issues that were likely to recur, even if the specific case was moot.
"Thus, when an appellate court considers whether it should consider a moot issue regarding victim’s rights — here, being sequestered from the trial — it would recognize the victim’s rights are a matter of great public importance," he wrote. "Further, because the issue will likely be repeated ... an appellate court would also consider the absence of judicial interpretation of Marsy’s Law and that a decision would guide circuit courts on the issue."
"A direct appeal of the circuit court’s sequestration order would constitute a meaningful opportunity for the victims or the government attorney, here Potter, for review of that order," he said. "Thus, this court concludes that Potter may not collaterally attack the circuit court’s finding him in contempt of court on appeal and affirms the court’s finding him in contempt."
Ashley was represented on appeal by Assistant State Attorney General Clayton Kawski.
Potter was represented by Milwaukee County Assistant District Attorney Julie Knyszek.
The full decision is here.
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