Some insults sting for a long time, especially if you’re a lawyer and the slight comes from a judge.
A Milwaukee public defender says he was insulted in court by Jeffrey Conen, a retired jurist who was back on the bench as a reserve judge earlier this month. Conen found him in contempt of court for making the allegation.
The incident, now under review by court officials, has many in the public defender’s office calling for Conen’s removal from the reserve court.
Conen is one of four reserve judges helping staff an extra branch of the Milwaukee Circuit Court to try to chip away at a massive backlog of cases resulting from the COVID-19 pandemic. The others are Thomas Wolfgram, Jeffrey Kremers and Daniel Konkol. The judges have been taking the bench a week at a time.
Reserve Judge John Franke has dedicated six months full-time to a second branch dealing with the backlog of felony drug cases.
Reserve judges earn $536.39 a day, according to the office of the director of state courts.
Robert Hampton III’s client in a misdemeanor case failed to appear for a Sept. 15 hearings to discuss a report from pretrial services. Before the hearing started, Hampton submitted a substitution request, asking that the case be reassigned from Conen to a different judge.
In Wisconsin, the defendants are entitled to one automatic substitution, and the requests are routinely made and granted without discussion.
According to a recording of the hearing, Conen asked Hampton why he’d bothered to use the substitution for a client who hadn’t even shown up.
“Why burn your sub?” Conen is heard asking in the recording, referring to Hampton’s client’s automatic substitution, just as he was issuing an arrest warrant.
“Oh, I’ve definitely got reasons, but we don’t want to get into that,” Hampton replied.
“Excuse me?” Conen responded loudly. Hampton said he understood the warrant would be issued and had no issue with that.
“Whatever. Go ahead, burn your sub that’s fine,” Conen said.
Hampton then explained his client was not present, and he didn’t expect the client to appear. Conen then issued a bench warrant for the defendant’s arrest and ordered any bail forfeited.
Then he said, “Who’s your supervisor, Mr. Hampton?”
Hampton said Travis Schwantes, and Conen replied, “OK, then I’ll be speaking with Mr. Reed.”
Tom Reed is Schwantes’ supervisor and heads the Milwaukee office of the state public defender. In 2020, Schwantes had filed to run against Conen, who later announced he was retiring from the bench to join a private law firm.
Hampton then asked, “Not my supervisor?” Conen said no, and Hampton responded, “Huh, OK,” with a hint of a laugh.
That prompted another “Excuse me?” from Conen, who then asked, “Is this funny to you?”
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“I said OK,” Hampton said. Conen then asked again, louder, “Is this funny to you?” two more times. Hampton said he answered the question.
“You are now in contempt of court,” Conen announced.
“All right,” Hampton responded.
“I don’t want this attitude,” Conen said. “What is your attitude and what is your problem?”
“Six years ago, you called me the dumbest person you ever met in your life,” Hampton responded.
“Yes,” Hampton said
“When did I call you that?”
Hampton said it was in court, on the record, and he’s never forgotten it.
“I’ve never called anyone that,” Conen said.
“Oh, you definitely did. I’ve not forgotten that,” Hampton said.
Conen then asked Hampton. “Do you want to apologize?”
“You called me the dumbest person you’d ever met in your life. You don’t know me. Are you apologizing? Because I’ll do it the second you do it.”
“Fine. I’m finding you in contempt,” Conen said. “Hold him.”
Hampton was then told by a deputy to sit in the jury box. The holding cell in the reserve courtroom on the fifth floor had been converted to storage.
Within a few minutes, two supervisors — neither Schwantes nor Reed — appeared in court to discuss the contempt, and Conen vacated his finding but ordered Hampton to appear before Chief Judge Mary Triggiano in two weeks.
Hampton and others from his office met with Triggiano last week, according to a participant who asked not to be identified for lack of authority to speak on the record.
Hampton graduated from Marquette Law School in 2014 and immediately joined the office of the state public defender.
Triggiano did not return repeated emails inquiring about the incident but is reportedly speaking to all the players involved before deciding whether to keep Conen on as a reserve judge.
Conen did not return a message left at his law office Thursday.
Reed said his office would have to confer with Hampton’s client before discussing the situation, and the client hasn’t been reachable.
“It is very rare for a lawyer to be found in contempt,” Reed wrote in an email. “It is worth noting that, in the end, no contempt finding was entered” in Hampton’s case.
Law on contempt allows punishment
By state lawjudges may punish someone who “commits a contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the courts.”
The only punishment Hampton seems to have suffered was being found in contempt and ordered to stay in the jury box of the courtroom for about an hour.
Wanting a judge off a case is fairly routine
Hampton’s written request for a different judge is a fairly routine action. Veteran defense attorney Craig Mastantuono said it’s an absolute right.
“A judge asking ‘why?’ is really never going to receive an answer they like or agree with, so it’s just starting down a path of conflict to ask,” he said. “The normal judicial response is to receive the filing, don’t take it personally, and move on to the next case.”
Because Hampton had submitted the request before the hearing started, Conen could have just taken himself off the case immediately and sent the case for assignment to another judge to consider Hampton’s client’s issues on pretrial release and failure to appear.
Mastantuono noted that even experienced lawyers always have to be careful about how they handle the inevitable conflicts with judges.
“If a judge feels comfortable putting lawyers in custody for perceived attitude problems, they are nearly always misapplying the summary contempt statute,” he said. “It’s clear that the statute is to be applied in rare instances to preserve order in the court or protect the court’s authority and dignity, and a specific procedure is to be followed with the right of the person to allocute, or explain, their conduct.”
Mastantuono said judges with the”appropriate judicial temperament” nearly always resolves perceived conflicts without resorting to contempt.
RELATED:Milwaukee has 5,000 backlogged criminal cases. Even with $14 million in federal funding, clearing them won’t be easy.
Contact Bruce Vielmetti at (414) 224-2187 or [email protected]. Follow him on Twitter at @ProofHearsay.