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COA upholds order finding prosecutor in contempt of court for violating sequestration order

Attorney Thomas L. Potter v. Circuit Court for Milwaukee County, the Honorable Kori Ashley, Presiding, 2022AP1396-CR, 10/17/23, District I (not eligible for publication); case activity

Although the prosecutor in this case may have conceptualized his decision to defy a court order as an act of civil disobedience necessary to preserve a challenge for appeal, COA disagrees and therefore affirms the circuit court’s order finding him in contempt.

This appeal arises from an underlying criminal prosecution, in which the State–represented by Attorney Potter–was attempting to prove that the defendant had struck one criminal defense attorney and spilled coffee on another while at the Milwaukee County Safety Building. (¶4). Prior to trial, defense counsel moved for sequestration of the alleged victim. (¶5). Attorney Potter vociferously, and repeatedly, objected. (¶6). In Attorney Potter’s view, the circuit court was simply not permitted to order sequestration of an alleged victim, under any circumstances, given the changes made to our constitution by virtue of “Marsy’s Law.” (¶6). The circuit court disagreed, holding that Marsy’s Law was not intended to strip defendants of their federal constitutional rights, including the right to a fair trial. (Id.). Applying § 906.15(2)(d), the circuit court therefore granted the defense motion. (Id.).

However, immediately after jury selection, Attorney Potter informed the court that he had emailed the victim and invited them to attend court proceedings in defiance of the court’s sequestration order. (¶7). He did so with the explicit intention that the court would find him in contempt of court. (¶1). Attorney Potter believed that the court’s contempt finding would provide a vehicle with which he could then challenge the underlying sequestration ruling. (¶7). The circuit court granted the request, found Attorney Potter in contempt, and fined him $500. (Id.).

On appeal, however, Attorney Potter’s legal stratagem backfires. To begin, case law is well-settled that a person is ordinarily precluded from using an appeal of a contempt finding to collaterally attack a prior judicial order. (¶12). Attorney Potter accepts that principle and agrees “that the orderly and expeditious administration of justice requires parties to obey an order issued by a court until it is reversed by proper proceedings” (¶11).

However, Attorney Potter identifies an excepti0n–when there is “no meaningful opportunity for review”–and argues that this exception applies here because the “underlying order excluding victims from the trial was erroneously rendered and Potter’s defiance of that order provided the only meaningful opportunity for review.” (¶14). Although the circuit court, in its response, articulates various procedural mechanisms that could have been used to challenge the sequestration order, Attorney Potter replies by arguing “that none of the opportunities that the circuit court raises constitute meaningful opportunities because the trial was proceeding and ‘any opportunity for appellate review of victim exclusion expired upon completion of the trial.'” (¶16).

While COA agrees that an appeal of the underlying order would be moot, the case nevertheless presents novel legal arguments that would likely justify review under the factors articulated in State ex rel. Olson v. Litscher. (¶22). Because an appellate court could decide to review the underlying issue even though it is moot, Attorney Potter is mistaken there was no alternative to his contumacious decision to flagrantly disobey a court order. (¶23). COA also distinguishes away Attorney Potter’s reliance on a case involving the Fifth Amendment privilege, where the decision to disobey a court order seeking to compel the disclosure of information did not bar a later attack on that underlying order. (¶18). That special circumstance is simply not analogous to this case, which does not involve the compelled production of information. (Id.). Accordingly, because Attorney Potter has not proven the existence of a special circumstance meriting an exception to the bar against collateral attacks, COA affirms the circuit court’s contempt order.

One final note regarding the unique alignment of interests in this case: The circuit court, represented by the Attorney General’s Office, is joined in its defense against those arguments advanced by the Milwaukee County District Attorney’s Office by none other than the SPD’s Acting State Public Defender Katie York, whose carefully laid out amicus brief provides the framework for this opinion authored by retiring Judge Timothy G. Dugan.

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