Brief for Respondents in Opposition — In Re Little

A= COURT, U. 3S.

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SUPREME COURT OF THE UNITED STA

October Term, 1971

* No. 71-244

In the Matter é the

Imprisonment of Larry Little,

Petitioner.

FILED

£. ROBERT SEAVER, CLERK

BRIEF OF RESPONDENT, STATE OF NORTH

CAROLINA, IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ROBERT MORGAN

Attorney General of

North Carolina

JACOB -L. SAFRON

Assistant Attorney General

". . EDWARD L. EATMAN, JR.-

Assistant Attorney General

Counsel for the State of North

Carolina, Respondent

Justice Building

Post Office Box 629

Raleigh, North Carolina 27602

Telephone (919) 829-7188

OPINION BELOW as. Sib ss i

JURISDICTION o1:ceceenes ‘439 dips 2

| QUESTIONS eesenicoee | guile oS

CONSTITUTIONAL AND STATUTORY sre ies

PROVISIONS INVOLVED 2.22.02... 2

STATEMENT OF THE CASE siieaboipe cur ae

ARGUMENT..... esas crs

CONCLUSION 6 osesessenseeee ; oe ae

TABLE OF CASES

COOKE v. UNITED STATES, 69 L. Ed. 767 (1925) 6, 7, 8

. EX PARTE TERRY, 32 L. Ed. 405. (1888) 7

GREEN v. UNITED STATES, 2 L. Ed. 24 672 (1958) een... 8

HARRIS v., UNITED STATES, 15 L. Ed. 24 240 (1966).....6, 7

HOLT v. VIRGINIA, 14 L. Ed. 24 290 (1965) 8

ILLINOIS v. ALLEN, 25 L. Ed. 2d 353 (1970)............ 6, 7, 9

JOHNSON v. MISSISSIPPI, 29 L. Ed. 2d 423 (1971) nner 6

LEVINE v.. UNITED STATES, 4 L. Ed. 2d 989. (1960) nee 8

MacINNIS v. UNITED STATES, 191 F. 24 157 (1951) |

Cert. Den. 96 L. Ed. 708 8.

MAYBERRY v. . PENNSYLVANIA, 27 L. Ed. 24°532 (1971)

es 6, 9, 10

OFFUTT v, UNITED STATES, 99 L. Ed. 11 (1954)... 7

| - | |

RE McCONNELL, 8 L. Ed. 2d 434 (1962). id $2

‘UNGAR v. SARAFITE, 11-L. Ed. 2d 921 (1964) ......0v: 9

YATES v. UNITED STATES, 2 L. Ed. 2d 95 (1957) sscsssscsesee 7

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; SUPREME COURT OF THE UNITED STATES

baie: Term, me er ee st, eG

No. 71-244,

In the Matter of the 9. 00

Imprisonment of Larry Little, - |

‘BRIEF OF RESPONDENT; STATE OF NORTH

_- CAROLINA, IN OPPOSITION. TO PETITION |

FOR WRIT OF CERTIORARI .

_ OPINION ) BELOW

Petitioner originally filed a Petition for Writ of Habeas —

Corpus in the Superior Court Division, General Court of Justice,

Forsyth County, North Carolina, which was denied, after hearing, -

in an Order. entered March 18, 1971, by the Honorable Charles T.

_Kivett, Judge Presiding (appended to petitioner’ $ petition). Petitioner .

' then filed a petition for Writ of Certiorari in the Court of Appeals ~~

Of North Carolina, which was denied by Order of the Court. in

conference on May 12, 1971, (No. 71SC152PC). His petition for

Writ of Certiorari was’ then filed in the Supreme Court of North —

Carolina which was also denied by Order of the Court in conference —

on June 10, 1971 (No. 67PC, Spring Term, 1971). .

: * From the judgment below, petitioner has filed this |

‘petition for Writ of Certiorari to the Supreme Court of mere ee eee

"Carolina in the Supreme Court ‘of the United States. |

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* JURISDICTION

‘ The jurisdiction of this Court has been invoked pursuant

to 28 U.S.C. §1257(3). « ’ v%

QUESTIONS

lL. WHETHER: THE’ DEFENDANT IN A

‘ CRIMINAL CASE CAN BE HELD TO BE IN |

CONTEMPT OF COURT WHEN HE STATES

‘TO THE COURT THAT HE IS A POLITICAL

PRISONER, THAT THE ‘HAS

PREJUDGED HIS CASE, THAT THE

Pe wa ect ‘ ,

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district shall have been previously ascertained by ‘w, and to be

informed of the nature and cause of the accusation; to be confronted Z '

with the witnesses against him; to have compulsory: process for

obtaining witnesses in his favor, and to have the assistance of counsel

I. All !

States, and ject to the jurisdiction thereof, are citizens of the

United States and of the State wherein y reside. No State shall

GENERAL STATUTES OF NORTH: CAROLINA:

; Section 5-1(1). Contempt Enumerated; Common Law

Repealed.—Any person guilty of any of the following acts may be

punished for contempt:

its authority.

Section 5-4. Punishment.—Punishment for contempt for

matters set forth in the sections shall be by fine not to

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Section “5-6. Courts and Officers Empowered io

Punish.—Every justice of the peace, referee, commissioner, judge of

a court, magistrate, or judge, justice, or clerk of the General Court

of Justice, or member of the board of commissioners of each county,

or member of the Utilities Commission or Industrial Commission,

has the power to punish for contempt while sitting for the trial

of causes or while engaged in official duties. .

STATEMENT OF THE CASE am

. The petitioner, Larry Little, was brought to trial upon

the charge of carrying a concealed weapon, N.C.G:S. § 14-269,

during March of 1971, in the District Court Division of the General

Court of Justice. for Forsyth County, North’ Carolina. By Order of

March 8, 1971, the Honorable A. L. Sherk, Judge’ Presiding at

petitioner's trial, found that during the course of the trial and

immediately thereafter, the following events occurred:

1. That the defendant stated that the court

was bias.

2. That he was a political prisoner.

3. That the ‘court had prejudged the case.

Judge Sherk “at this point informed the defendant that

he was in contempt and the Court felt that these remarks were

very disrespectful and tended to ‘subvert and prevent justice.” As

', the petitioner was being removed from the courtroom, he called

the presiding judge a "M..... F.,..." "The Court conclude(d) on the

foregoing facts that the conduct of the defendant and the words

spoken by him in the presence of the court were contemptuous,

that they reflected on the integrity of the Court and tended to

subvert and prevent justice, and the defendant is thereabove held

in contempt of this. Court." The Court then ordered that the

petitioner "be imprisoned in the common jail of Forsyth County

for a term of thirty days.". _*

Petitioner filed .an Application for Writ of Habeas

Corpus with the Clerk of the Superior Court Division of the General

Court of Justice of Forsyth County, North Carolina, on March 16, |

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1971, seeking the release from his confinement. Writ of Habeas

Corpus was issued, and the matter was heard in the Superior Court |

on. March 18, 1971. By Order of Mar h 18, 1971, the Honorable

Charles T. Kivett, Judge Presiding, determined that the petitioner

was not being restrained of.-his liberties in violation of the |

Constitution or laws of the United States or of the State of North

Carolina. Judge Kivett found that the defendant's utterances were

made in Open court during his trial and were in the presence and

i hearing of the District Court Judge, which were in direct contempt

| of court. The Court found that the District Court had jurisdiction

i of the defendant and the subject matter of the trial; that the District

i Court had the authority to punish the defendant for-contempt of

court and did not exceed said authority; that the conduct of the

petitioner amounted to a direct contempt of court under -N.C.G.S.

§5-1(1) in that such words uttered in the presence, immediate view _

and hearing of the court and those assembled therein, directly tended

to interrupt its proceedings and to impair the respect due the District

SNe Nee et

Court's authority. |

From the Judgment of the Superior Court Division, the -

petitioner filed a Petition for Writ of Certiorari in the North Carolina

Court of Appeals (No.71SC152PC), to review the Order below. By .

Order of the North Carolina Court of Appeals in Conference, dated

May 12, 1971, the Petition for Writ of Certiorari was denied.

Petitioner then filed a Petition for Writ of Certiorari in the Supreme

Court of North Carolina (No. 67PC, Spring Term, 1971), which was

. denied by Order of-the Court in Conference on June 10, 1971.

. From the denial of Certiorari by the Supreme Court

of North Carolina, petitioner has now filed the present Petition for’

Writ of Certiorari in the Supreme Court of the United“ States..

: ARGUMENT

... THE DEFENDANT IN A CRIMINAL

CASE CAN BE HELD TO BE IN CONTEMPT

OF COURT WHEN HE STATES TO THE

COURT. THAT HE IS. A_ POLITICAL.

PRISONER, THAT THE COURT HAS

PRE-JUDGED HIS CASE, AND THAT THE ©

COURT IS BAISED.

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The decision-of the trial court, in holding the petitioner

in direct contempt of court, was in accord with constitutional

principles handed down by this Honorable Court. "It is essential

to the proper administration of criminal justice that dignity, order,

and decorum be the hallmarks of all court proceedings in our.

country, the flagrant disregard in the courtroom of elementary |

standards of proper conduct should not and cannot be tolerated.

7 We believe trial judges confronted with disruptive, contimacious,

stubbornly defiant defendants must be given sufficient discretion

to meet the circumstances of each case. Noone formula for.

maintaining the appropriate courtroom atmosphere will be best in

all situations. We think there are at least three constitutionally

_. premissible ways for a trial judge to handle an obstreperous

defendant like (petitioner): (1) Bind and-gag him, thereby keeping

_ him present; (2)-cite him for contempt; (3) take him’ out of the

courtroom ‘until he promises to conduct himself properly.” Illinois

v. Allen, ao kes Ed. 2d 353, 359 (1970). -

| ie ; "Instant action may be necessary where the misbehavior

is in the presence of the judge and is known to him, and where —

immediate corrective steps are-needed to restore order and maintain

dignity~and authority of the court. Cooke v. United States, 267

U.S. 517,. 534; Harris y. United States, 382 U.S, 162, 165. The

. contempt power is within the judge’ s ‘arsenal of authority’ which

~ we recently described. in Illinois v. Allen, 397 U.S. 337. * Johnson

v. Mississippi, 29 L. Ed. 2d 423, 426 (1971).

; The respondent contends that instant action was

“necessary in the present case. The. petitioner's misbehavior was in

the presence of the judge and known to him. The defendant stated

that the court was bias, that he was-a political prisoner, ‘and that

the. court had pre-judged his case. The trial court in its order

determined "that the conduct of the defendant and the words

spoken by him in the presence of the court were contemptuous, Li

that they reflected on the integrity -of the court and tended to - :

subvert and prevent justice." The court's action was needed "to

restore order and maintain the dignity and authority of the court."

' As stated by Mr. Chief Justice Burger in his concurring . fe

opinion in Mayberry v. Pennsylvania, 27 L. Ed. 2d 532 (1971): .

"Certain aspects of the problem ¢ maintaining in COMMTFOREE the ee

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indispensable: atmosphere of quiet orderliness are crucial. Without _

order and quiet, the adversary process must fail." 27 L.Ed. 2d,/'

at 541. It takes little imagination to realize that when a defendant

in a criminal proceeding states to the court that the court is biased,

that he is a. political prisoner, and that the court has pre-judged

his case, that such disrupts the proceedings and requires immediate

corrective steps. "(T)he contempt remedy should be borrie in mind —

by a judge in the circumstances of this case." JIinois y. Allen, 25

LL. Ed. 2d, at 360. She bat a ok | spy

In his argument, petitioner contends that "the contempt

powers are not to be invoked simply because one is not acting in

his enlightened self-interest," that the petitioner's reimarks were

merely "tactless", and that "coritempt is a remedy too drastic to

be invoked merely for the enfércement of niceties of etiquette."

(p. 12). The statements petitioner made to the trial judge reflect

more than a mere lack of etiquette. Petitioner's intent to convey .

a hostile and distruptive attitude toward the court and proceedings

before it can best be discerned from the statement he made to the

court while being removed from the courtroom. "(O)ur courts,

palladiums of liberty as they are, cannot be treated disrespectfully~ _

with impunity.” J1linois v. Allen, 25 L. Ed. 2d, at 360.

set "Summary contempt is for ‘misbehavior’ (EX PARTE

TERRY, 128 U.S. 289, 314, 32 L. Ed. 405, 412, 9S. Ct. 77) in -

‘the ‘actual presence of the court.’ Then speedy ‘punishment may -

be necessary in order to’ achieve ‘summary vindication of the court's ©

dignity and authority.’ Cooke v. United States, 267 U.S. 517, 534,

69 L. Ed.:767, 773, 45 S: Ct. 390." Harris v. United States, 15°

L. Ed. 2d 240, 242 (1966). . ga aio male 33 Stan

: .. The Courts of the State of North Carolina are provided

by statute.with the authority to punish summarily when- the

_-contempt is committed in the presence of the court. This Court

has held that Federal Courts have power summarily to punish, under -

Rule 42(a), asa criminal contempt disobedience of its lawful order

if the disobedience occurs in the presence of the court and is in

the sight and hearing of the judge. Yates v. United States, 2.L. Ed.

2d 95. (1957); Offutt v. United States, 99 L. Ed. 11 (1954). As

to the exercise of the Federal Courts’ summary power to punish - -

for contempt committed in the actual presence of the court, see. -

“sy

Anactations ot. 96 L. Ed. 162, 3°L. Ed. 2d 1855.

"(A) court . . . upon tre commission of a contempt |

in open court might upon its own knowledge of the facts without: - F

further proof, without issue or trial, and ‘without hearing an pt

explanation of the motives of the offender, immediately proceed :

to determiine whether ‘the facts justified punishment, and to inflict: .

such punishment as was fitting under the law,” Cooke v. United

States, 69 L. Ed. 767, T73 (1925). :

Bf The United States Supreme Court has held that criminal -

contempt proceedings do’ not fall within the meaning of the term

_ “eximinal prosecutions" as used in the Sixth Amendment, with the

_ result that there is no Sixth Amendment right to a public trial in

such contempt proceedings. Levine v. United States, 4 L..Ed. 2d

989 (1960). See also Green_v. United States, 2 L. Ed. 2d 672.

(1958). The power of the courts to punish*contempt in the face .

of the court without further proof of facts and without aid ‘of a

jury is in accord with due process of law. MacInnis v. United States, -

191 F. 2d 157 (1959), cert. ‘den. 96 L. Ed. 708. See also

Annotation, 93 L, Ed. 579, at t 583.

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Petitioner . argues "in the ‘eit case ‘there is no :

indication that petitioner would not have heeded a warning from

the court that the argument ‘was exceeding tolerable bounds,” and.

therefore holding petitioner in contempt was not necessary to

_Protect its proceedings. Any assertion that 4 warning would have

been “sufficient is dissipated by the petitioner calling the trial judge.

4 "M..... F....." after being cited for contempt of court. Petitioner's

contaation that his stateménts to the court had no disruptive effect

- upon the proceedings tests. one’s common Bites. cs and

Sn

By his contemptuous statements, the. petitioner was.

doing “more than’ exercising the right. to be heard in his own

defense,” (Petition, p. 15). Petitioner alleges that he should have ~ ; ee

been allowed this latitude in presenting his case to the court, citing —

Re McConnell, 8 L. Ed. 2d 434 (1962), and Holt v. Virginia, 14

L. Ed. 2d 290 (1965). However, neither of the above cases present

such a disrespectful and vindictive attack upon the court's authority

as shown by the facts of the present case, and therefore would not

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. judge to take his place.” 27 L. Ed. 2d, at 539.

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be authority for granting petitioner’ s ae he for relief.

Petitioner’ s conduct constituted .s “clear sind present

danger to the authority of the court and the Stderly administration :

of justice, so that the judge, in punishing ee for contempt, .

was acting within constitutional bounds.

I. ‘A JUDGE MAY RULE . UPON

CONTEMPT CHARGES COMMITTED BY A

DEFENDANT IN A CRIMINAL CASE IN THE °

_ PRESENCE OF THE COURT, EVEN THOUGH

THE DEFENDANT STATES TO THE COURT

THAT THE COURT IS BIASED AND HAS — *

PRE-JUDGED HIS CASE.

’ Petitioner contends that his attacks upon. the integrity

of the judge disqualified the trial judge from sitting in the contempt

proceeding, and he should have been given a public trial before

another judge, citing Mayberry v. Pennsylvania, 27 L. Ed. 2d.532

(1971). In Mayberry, this Court held ‘that: "where (the trial judge)

does not act the instant the contempt is committed but waits until

the end of the trial, on balance, it is generally wise where the marks

of the unseemly. conduct have left personal stings to ask a fellow

is the present case, the trial judge did not wait until ©

_ the end of the trial to hold the petitioner in contempt. “The court

' at this Pe informed the defendant that he was -in

contempt . " (Order of March 8; 1971). "As these separate

acts or entbensts took place, the arsenal of authority described in ©

Allen was available to the trial judge to keep order in the courtroom.

He could, with propriety, have yond acted, holding Petitioner

in contempt.” 27 L. Ed. 2d, at 539. ts

F beets

; "It is of course ‘not every attack on a judge’ that .

disqualifies him from sitting.” 27°L. Ed. 2d, at 540. See also Ungar ~

v. Sarafite, 11 L. Ed. 2d 921 (1964). There is no evidence that _—

‘ the trial judge became so "personally embroiléd" with the pétitioner

"as to make the judge unfit to sit in eal on the contempt —

charge." os. Ed. 2d, at 540.

AO.

| "Instant treatment; of. sieteaasd aien Iguviens: are

"- involved may greatly prejudicé their clients but it may be the ‘only 7

wise course where others are involved. Moreover, we do not say

that’ the more’ vicious the attack on the judge the less qualified he

__ is to act. A judge cannot be. driven out of a case.” ark. Ed. 2d,

at 539. Pap tits

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The attacks upon the judge in Mayberry were of a more

severe nature that leave "personal. stings” than the facts presented

in the present case. (See 27 L. Ed. 2d, at 535-538). “Many of the

* words levelled at the judge in (Mayberry) were highly personal .

aspersions, . even “fighting words’ — ‘dirty’ sonofabitch,’ ‘dirty

tyrannical old dog,’ ‘stumbling dog,’ and 'fool.' He was charged with

running a Spanish Inquisition and told to ‘Go to hell’ and ‘Keep

your mouth shut.’ Insults of that kind are apt to strike ‘a ‘at the most

vulnerable and human qualities of a. judge's temperament." 27 .

L., Ed. 2d, at 540. The vicious and prolonged attach by Mayberry

upon the judge presiding presents a picture of marked contrast with:

the facts of the present case, where th®“petitioner stated that the

court was biased and had pre-judged his case. There is no evidence.

. that the presiding judge was not able “to_maintain that calm

| detachment necessary for fair adjudication.” 27 hs Ed, 2d, at 540.

‘

CONCLUSION s po eer

The visi respectfully requests that for the enim |

. reasons that the - Petition _for Wait: of Certiorari be denied.

Respectfully submitted,

zo ROBERT MORGAN “g

* Attorney General of -

North Carolina oe 7

JACOB L. SAFRON PGi

A Member of the Bar of th

Supreme Court of the it

States :

. EDWARD L. EATMAN, IR.

Assistant Attorney General

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‘Counsel for the State of North.

Carolina, Respondent

Justice Building

Post Office Box 629

Raleigh, North Carolina 27602

‘Telephone (919) 829-7188

6.