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‘Why do you keep harassing me?’: An Outagamie County judge controls defendants after sentencing

‘Why do you keep harassing me?’: An Outagamie County judge controls defendants after sentencing

Chris Kartsounes had heard enough of Outagamie County Circuit Judge Vincent Biskupic’s demands. In May 2017, at his sixth hearing after having already been sentenced — when a case would normally be over — Kartsounes lost his cool.

“I’m tired of this, your honor,” he said. “I’ve served my time. I’ve done everything I’m supposed to do ... Why do you keep harassing me?” he asked, firing profanities at the judge.

After the outburst, Biskupic accused Kartsounes of drinking — a violation of the condition that he remain sober while out of jail. When Biskupic asked whether a breathalyzer would detect alcohol, Kartsounes said he did not know. The judge promptly sent him back to the county jail in Appleton, where Kartsounes would serve the nearly four months that remained on his 12-month sentence.

Just like dozens of defendants identified by Wisconsin Watch and WPR whose cases landed in Biskupic’s courtroom, Kartsounes, now 55, faced an uncertain future — one in which he didn’t know when his punishment, and the court’s control over his life, would end.

Over the past seven years in at least 52 cases involving 46 defendants, Biskupic has used so-called review hearings to either monitor a defendant’s behavior or to push them to pay fines, fees or restitution, Wisconsin Watch and WPR found. These check-ins — not spelled out in state law — often involved defendants updating the judge on their lives and their progress toward meeting Biskupic’s conditions.

About two dozen legal experts consulted by Wisconsin Watch and WPR had a wide range of views about Biskupic’s use of review hearings. Some said the practice is legal, some called it a gray area and some said it has no basis in state law. Others had never heard of it before.

A Wisconsin Watch and WPR analysis shows Biskupic is by far the biggest practitioner in Wisconsin of review hearings like in Kartsounes’ case — held after a person has been revoked from probation. Probation allows people to remain out of jail if they meet certain conditions and remain crime-free.

After a detailed review of each case file, Wisconsin Watch and WPR found that in 29 cases, Biskupic held 142 such review hearings — more than twice as many as any other judge in Wisconsin between 2014 and 2020.

Wisconsin Watch and WPR also found:

  • Biskupic ordered four defendants to be arrested for failing to show up for these legally dubious review hearings after their probation had been revoked.
  • Biskupic had another four people arrested for failing to show up for review hearings aimed at collecting overdue fines, fees and restitution. Civil authorities generally handle such collection efforts — and have no power to issue arrest warrants.
  • The judge also bypassed Outagamie County’s treatment courts, fashioning his own form of supervision that included a shifting set of demands beyond treatment including getting a high-school equivalency degree and finding a “better job.”

Judge as ‘probation agent’

After Kartsounes completed the treatment program and returned to court, Biskupic imposed other conditions, saying during an April 20, 2017 review hearing he would “close out the file” when Kartsounes found a better place to live and some “stability.”

The judge scheduled another review hearing for a month later. That’s when Kartsounes lost his composure, and Biskupic sent him back to jail.

“I shouldn’t have been in court that day in the first place,” Kartsounes said in an interview. “My sentence was over.”

Biskupic did not directly answer a set of 22 detailed questions about these arrangements. Biskupic, a former Outagamie County district attorney, was appointed to the bench in 2014 by then-Gov. Scott Walker. He was elected to a six-year term in 2015 and re-elected in April, both times unopposed.

In a statement, he said Wisconsin Supreme Court rules “limit a judge’s public comments on court cases.” Biskupic’s private attorney, Daniel T. Flaherty of Godfrey and Kahn, cited two rulings from the Wisconsin Court of Appeals and Supreme Court that he said give Biskupic the authority to grant a jail inmate a temporary furlough to get alcohol or drug treatment.

However, Deja Vishny, a private defense attorney and adjunct professor at Marquette University Law School, said those do not apply because they deal with a court’s ability to grant a furlough before sentencing. The stays Biskupic issued have come after sentencing.

Vishny told Wisconsin Watch and WPR that there are few situations in which a judge can stay a sentence, and “deciding that you’re going to be the probation agent for the person is not one of them.”

“(Biskupic) just has absolutely no authority to do what he’s doing,” she said.

‘De facto’ probation

For defendants like Kartsounes, the arrangements look a lot like being on probation with the state Department of Corrections — but without the probation agent. Defendants are answerable only to Biskupic. He alone determines when his control over their lives will end, acting as judge, debt collector and, at times, counselor, court records show.

In an interview, Milwaukee County Circuit Judge Frederick Rosa, who has served 17 years on the bench, said he had never heard of such a practice.

“I don’t know of anybody imposing and staying a sentence that isn’t monitored by the (Wisconsin Department of Corrections) probation department,” said Rosa, who was named Wisconsin Judge of the Year by the State Bar of Wisconsin in 2017.

Dane County Circuit Judge John Hyland, who helped write the Criminal and Traffic Benchbook, the official how-to for Wisconsin judges overseeing criminal cases, said he is not aware of any legal authority for a judge to use a stay to release people from jail, set conditions and monitor their behavior through review hearings — unless they are on state probation.

“I do not find any provision in the (sentencing statute) which provides jurisdiction over a person sentenced to jail,” Hyland said. “I do not know what authority would permit review hearings or continued court appearances.”

In 2000, the Court of Appeals found a Barron County Circuit Court judge exceeded his authority in creating a “‘de facto’ probation” by staying a defendant’s jail time to monitor her progress in alcohol treatment.

But the unpublished opinion did not set a precedent. Flaherty noted the ruling has “no binding authority on trial court judges.”

Former state public defender Brandt Swardenski advised clients that these supervisory arrangements with Biskupic can be a “benefit,” but that they are “stepping into a sort of gray area of the law … and you’re subjecting yourselves to further consequences down the line.”

The state public defender’s office acknowledged that these sentences “may appear unusual,” but said it is their duty to explore the best option for each client.

Judges’ power ‘not fleshed out’

Flaherty defended Biskupic’s approach, saying prosecutors did not object to the sentences, and defendants did not appeal their cases. But Wisconsin Watch and WPR’s review of case files showed that defense attorneys and prosecutors did sometimes question the propriety of these arrangements.

In a statement, Biskupic said stakeholders within the Outagamie County criminal justice system have sought opportunities to provide treatment for inmates with drug, alcohol or mental health needs.

It is unclear, however, whether judges have the authority to stay a sentence and supervise defendants in this manner.

State statute lists three scenarios for stays: placing someone on probation; for any length of time up to 60 days; or for “legal cause.” The Wisconsin Supreme Court said in 1998 that stays cannot be “for the purpose of personally accommodating a defendant.”

Biskupic’s use of stays was far more expansive than the 60-day limit, sometimes stretching on for years.

“Wisconsin law alludes to the inherent authority of the court over its sentence, but it has not been fleshed out … what are the outer bounds of that power,” said Cecelia Klingele, a law professor at UW-Madison.

‘Inherent power of the court’

Brown County Circuit Judge Donald Zuidmulder said while there’s no specific state law spelling out this type of judicial supervision, it’s legal because it’s an “inherent power of the court.”

Judge Mitchell Metropulos, Biskupic’s colleague in Outagamie County, said he has stayed jail terms to allow a person to attend treatment.

“I think the court has the authority to supervise a sentence,” he said, “and I don’t think there’s any limitations as to how long that would last.”

However, the Wisconsin Judicial Benchbook warns that a judge “has no inherent power to stay (a) sentence” — except when a defendant seeks an appeal.

This isn’t the first time Biskupic has leaned into gray areas of the law. A 2002 investigation by the Wisconsin State Journal exposed Biskupic’s practice as Outagamie County district attorney of allowing people to avoid criminal charges if they donated to a fund in his office. Legal experts said it created a two-tiered system of justice, enabling the wealthy to buy their way out of punishment.

The Wisconsin Ethics Commission condemned the conduct, warning other prosecutors against the practice. And in 2008, lawmakers officially amended state law to make it illegal.

Court records show former public defender Amanda Skorr objected to Biskupic’s continued supervision of a client arrested for failing to attend Biskupic’s review hearings. She argued the court lacked “jurisdiction” because “probation has expired.”

But Skorr, now in private practice, said in an interview that she believes Biskupic’s motivation was noble: “He wants to see people grow and change, and he wants to monitor that growth and change.”

Kartsounes views it very differently. He eventually landed in prison, spending much of his two years in solitary confinement.

When he was released in March, he returned to the same reality he left: Staying at a hotel in Appleton, looking for full-time work and searching for permanent housing. He acknowledged that treatment was helpful but regrets the way it played out.

“Biskupic left me no way to go forward. I couldn’t move, I couldn’t rent an apartment until this case was done,” Kartsounes said. “The system has ruined me.”

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