# Sussman v. Commonwealth

> Massachusetts Supreme Judicial Court · March 22, 1978 · 374 Mass. 692

URL: https://www.frixlaw.com/law-library/cases/9713197

## Case

- **Full name:** Steven A. Sussman vs. Commonwealth
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** March 22, 1978
- **Citations:** 374 Mass. 692; 374 N.E.2d 1195; 1978 Mass. LEXIS 890
- **Precedential status:** Published
- **Opinion:** Concurrence by Hennessey
- **Judges:** Hennessey, Braucher, Wilkins, Liacos, Abrams
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713197

## How later opinions describe it (automated extraction)

- noting that “flagrant contemptuous conduct” could justify the exercise of the summary contempt power without a warning

## Opinion text

Hennessey, C.J.
(concurring). I concur with the result of the main opinion, and with almost all its reasoning. Nevertheless, I think it necessary to add a few observations. I think the implications of this case, and any similar case, reflect most importantly on the judicial obligation to ensure a fair and impartial trial. Impartiality, and the appearance of impartiality in the eyes of the jury, are thwarted by the failure of judicial restraint; by the hasty use of the contempt power, or the unwarranted threat of its use; by unwarranted intimidation of any kind which may serve to repress the attorney in his performance of his duty as a vigorous advocate; and by colloquies and jousts of a disciplinary tone between judge and counsel within the hearing of the jury. 1
*703 Nevertheless, counsel has obligations as well. The main opinion fails to state what I think is clear in the record of this case: that the judge was warranted in concluding that the defense attorney had deliberately and almost immediately flouted his ruling. The attorney asked the witness a question which the judge could reasonably infer was substantially the same as the question which had just been specifically excluded by the judge. Further, the controversial questions concerned a crucial point of evidence, since counsel, contrary to the judge’s ruling, appeared to be inquiring as to the habits and reputation for chastity of an alleged rape victim.
I do not conclude that counsel was wilfully evading the judge’s ruling, nor do I urge this court to so conclude. I do say that the record fully warranted the trial judge in drawing that inference, and it is obvious that he did. It is also clear, as shown in the main opinion, that the judge overreacted thereafter. Since power resides in the judge, he has the primary duty to protect the impartiality of the trial. Nevertheless, the lesson is clear that counsel has a duty toward the concept of impartiality. His recourse is to offer legal argument to the trial judge at the right time and place, and to save his client’s appellate rights if the ruling is adverse. If counsel oversteps, it increases the likelihood of unseemly developments. These in turn may result in regrettable curbing by the judge of the lawyer in the advocacy of his client’s cause, and may divert the jury from the truth by injecting extraneous and obvious tensions between judge and counsel.
In this case we observe that the judge so acted as to keep the controversy, for the most part, from the jury’s attention.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713197. Public record. Not legal advice.