Petition — In re Schulman
Supreme Court brief1979
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JUN 4 4979
WICHAEL RODAK, JR., CLERR J
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
No. <8- ] 824
IN RE: MILTON PHILIP SCHULMAN,
Petitioner
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
WALTER S. HAFFNER
1008 Standard Building
Cleveland, Ohio 44113
Attorney for Petitioner
TABLE OF CONTENTS
PAGE
Citation to Opinions Below ...................005. 1
NEES RNRUTERT RS ge a a Pa 1
od a disk bp ars eae’ 6 ON Oe OS 2
Constitution and Statutes Involved ................ 2
REEL ES OE 3
Reasons for Granting the Writ .................... 6
ES i Ee hw a aad ce teen bs 80s 13
Seaiber Uitionmtely Soweht 5.5... ccc tcc cece ees 13
TE 14
Appendix:
Opinion of the Court of Appeals for the Sixth District 15
Affidavit of Bias and Prejudice ................. 18
Memorandum and Order filed December 8, 1978... 23
Notice of Hearing and Order filed December 20, 1978 29
Memorandum and Order filed February 22,1979.... 31
Memorandum and Order filed February 22, 1979.... 33
Memorandum and Order filed February 21,1979 .... 36
Transcript of Proceeding of December 20, 1978
Transcript of Excerpts of Proceeding of
a A rr wa 66
Transcript of Excerpts of Proceeding of
December 15, 1978
AUTHORITIES CITED
CASES
Anderson v. Dunn, 1821, 6 Wheat (19 U.S.)
My OE pase kdeweeGeseesedeseccareess
CE. Cb t cheb lek Maw 66 04 de bie Oc
Cammer v. U.S., 350 U.S. 399 (1956) p. 404.....
Ex parte Robinson, 19 Wall 505 (1874) .........
Ex parte Wall, (1883), 107 U.S. 265 ...........
Ford v. Kinzel, et al., U.S. District Court
e 8 ) 7 BR ney i Sere
SE BE be AER T De OR ele abe © 20's Cao's
Harris v. U.S., 1965, 383 U.S. 493 (1967) .......
In re McConnell, 370 U.S. 230 (1962) ..........
In re Michael, 326 U.S. 224, 227, (1945) ........
In re Ruffalo, (1968), 390 U.S. 544, p.551 ......
In re Williams, (C.A.-5th), 1975, 509 F.2d 940...
Morgan v. U.S., 304 U.S. 1, Pg. 18, 19 (1938) ....
Pietsche v. President, (C.A.-2nd), 1970, 434 F.2d
RG ae etree One eats ee
Spevack v. Klein (1967), 383 U.S.511..........
Slochower v. Board of Education, 350 U.S. 551
PC AMUA Ss cha Win 5 Po.0 as) meee vees's
U.S. v. Camil, (C.A.-5th), 1974, 497 F.2d 225....
U.S. v. Marshall, (C.A.-9th), 1971, 451 F.2d
—— -
Ee Chir ts mag tee Te
U.S. v. Schrimsher, (C.A.-5th), 1974, 493 F.2d
a eee Perera ere eee Ee ee
Willner v. Committee on Character, (1963),
tk Pier ane
PAGE
9, 10
11
11
OHIO STATUTES
PAGE
Criminal Rule 42, Federal Rules of
ER ee ace ans ee en 2,3, 10,13
p> & MIF tee 0 | RE oe 8,9, 10, 12
TS Be iiss 6 bb GS ccckectaawus 4
Tas Se CS ,... Se PEE oa kc 6 0d68 as eeees 1
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
No.
—_———_ ee ee ee
IN RE: MILTON PHILIP SCHULMAN,
Petitioner
—
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the
Sixth Circuit entered in the above entitled case on May 4.
1979.
CITATION TO OPINIONS BELOW
The opinion of the United States District Court for the
Northern District of Ohio, Eastern Division, is unreported
as of this date. The opinion is set forth in the Appendix on
pages 31, 33, and 36.
The opinion of the United States Court of Appeals for
the Sixth Circuit is as of this date unreported. The opinion is
set forth in the Appendix on page 15.
JURISDICTION
The jurisdiction of this Court is invoked under Title 28
U.S.C... Section 1254.
2
QUESTIONS PRESENTED
(1) INDISBARMENT PROCEEDINGS OF AN ATTORNEY
IN THE UNITED STATES DISTRICT COURT, WHAT DUE
PROCESS OF LAW IS GUARANTEED TO SAID ATTORNEY
UNDER THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION?
(2) CAN A DISTRICT COURT PUNISH FOR CONTEMPT
OF COURT AN ATTORNEY BY SUSPENDING HIM FROM
THE PRACTICE OF LAW?
(3) WHAT LIMITS THE POWER OF THE UNITED
STATES DISTRICT COURT TO EMPLOY SUMMARY
CONTEMPT POWERS AGAINST AN ATTORNEY?
(4) INA CRIMINAL SUMMARY CONTEMPT OF COURT
PROCEEDING AGAINST AN ATTORNEY, MUST THERE BE
A COMPLIANCE WITH CRIMINAL RULE 42?
(5) WAS PETITIONER'S CONDUCT CONTEMPTUOUS?
CONSTITUTION AND STATUTES INVOLVED
UNITED STATES CONSTITUTION
FIFTH AMENDMENT
No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the
land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use
without just compensation.
3
18 U.S.C., FEDERAL RULES OF
CRIMINAL PROCEDURE
RULE 42
Rule 42, Criminal Contempt.
(a) Summary Disposition. A criminal contempt may
be punished summarily if the judge certifies that he saw or
heard the conduct constituting the contempt and that it was
committed in the actual presence of the court. The order of
contempt shall recite the facts and shall be signed by the
judge and entered of record.
STATEMENT OF FACTS
On February 22, 1979, Judge Krupansky issued the
following order against petitioner:
1. Suspended petitioner from the practice of law for
two (2) years in the U.S. District Court for the Northern
District of Ohio; until he,
2. Satisfactorily demonstrated to Judge Krupansky a
proficiency and understanding of the Federal Rules of Civil
Procedure, Evidence, local rules for the Northern District of
Ohio, and the Ethical Consideration of the American Bar
Association Code of Professional Responsibility; and until
he,
3. Satisfactorily demonstrated an abiding commitment
to conduct himself in a manner commensurate with the
Ethical Consideration of the American Bar Association of
Professional Responsibility; and until he,
4. Presented to Judge Krupansky a certificate that he,
petitioner, has completed, after the date of this order, a
course of study conducted by an accredited law school in
the following subjects:
4
a. Federal Practice and Procedure, including
Federal Rules of Civil Procedure—six (6) hours,
b. Evidence— minimum three (3) hours,
c. Federal Rules of Evidence—minimum four (4)
hours,
d. Criminal Law and Procedure, including Federal
seo of Criminal Procedure— minimum three (3)
ours,
e. Trial Advocacy — minimum four (4) hours,
f. Professional Responsibility—minimum two {2}
- hours,
g. actual attendance and participation, as certified
by a member of the Bar of the United States
District Court for the Northern District of Ohio, in
four experiences of some combination of
contested testimonial trials in a federal court of
record under the supervision of an experienced
trial lawyer admitted to practice.
Further, the court fined petitioner the sum of Twelve
Hundred Fifty Dollars ($1,250.00) and suspended One
Thousand Dollars ($1,000.00) of that fine upon the payment
of Two Hundred Fifty Dollars ($250.00) by not later than
March 26, 1979.
Petitioner in the matter of Barbara Ford versus Ken
Kinzel, et al., being Case Number C 78-1169 in the U.S.
District Court for the Northern District of Ohio, Eastern
Division, filed on December 4, 1978, an Affidavit of Bias and
Prejudice, in compliance with 28 U.S.C. Section 144 against
Judge Krupansky. (See Appendix Page 18 for said affidavit)
On December 8, 1978, Judge Krupansky denied said
Affidavit of Bias and Prejudice. (See Appendix Page 23 for a
copy of said order of Judge Krupansky.)
In the Memorandum and Order of Judge Krupansky
5
denying the Affidavit of Bias and Prejudice, (see Appendix
Page 18) there appears the following language, which
petitioner believes foreshadows the reason why Judge
Krupansky found petitioner in contempt of court:
“Conduct on the part of any attorney, however,
which frustrates and/or demeans the orderly
procedures imposed by the rules of the United
States District Court for the Northern District of
Ohio, the Federal Rules of Civil Procedure,
Federal Rules of Evidence, and the rules and
Orders of this Court will not be contenanced."’
Judge Krupansky has before him the anti-trust law suit
of City of Cleveland versus Cleveland Electric Illuminating
Company.
Mr. Jack Schulman, the son of petitioner, is the Law
Direcior for the City of Cleveland.
Recently, certain legal motions have infuriated the
Judge so that he has placed that litigation at the bottom of
his trial schedule.
rurther, the Cleveland Electric Illuminating Company
has secured judgments against the City of Cleveland. The
judgments were put into execution by placing liens against
assets of the City of Cleveland.
Petitioner sought to approach Judge Krupansky with a
view to purchase said judgments.
Judge Krupansky was not in when petitioner attempted
to see the Judge. Petitioner instead saw Judge Krupansky’s
law cierk. Petitioner informed the law clerk of his business
with the Judge. Petitioner found that the law clerk was
being snotty and sarcastic with him. Petitioner told the law
clerk to understand that his business was with the Judge
and not with him; that the law clerk was to request the
6
Judge to call petitioner to set up an appointment with the
Judge, counsel for the Cleveland Electric Illuminating
Company, and the City to discuss the purchase of the liens.
The law clerk gave the judge ar opportunity to forestall
the meeting between the attorneys for the Cleveland
Electric Illuminating Company, the City of Cleveland and
the Judge, and had his law clerk state in a record that
petitioner insulted the law clerk and used abusive
language.
With this preview, the housing case of Barbara Ford
against Ken Kinzel, et al. began.
During the procedure on December 14, 1978, after a
conference at the bench, the court found petitioner in
summary contempt. This occurred while petitioner was
cross-examining the plaintiff. {See Appendix Page 66)
On December 15, 1978, the court found petitioner in
summary contempt while petitioner was examing his
witness. (See Appendix Page 72)
From the judgment and fines of February 22, 1979,
petitioner filed his Notice of Appeal.
On May 4, 1979, the United States Court of Appeals for
the Sixth Circuit issued its order (see Appendix Page 15)
holding that petitioner was in contempt of court, but the
suspension order from the practice of law was remanded to
the District Court with instructions.
From this order petitioner now asks relief from this
Court.
REASONS FOR GRANTING THE WRIT
|1] In disbarment proceedings of an attorney in
the United States District Court, what due process of
7
law is guaranteed to said attorney under the Fifth
Amendment to the United States Constitution?
“Like the school teacher in Slochower v. Board of
Education, 350 U.S. 551 (1956), and the policement in
Garrity v. New Jersey, 385 U.S. 493 (1967), lawyers also
enjoy first-class citizenship.'’ Spevak v. Klein, 385 U.S. 511
(1967(, p. 516.
Disbarment proceedings are not to be taken lightly by
the courts. They have been described by the Supreme Court
as being “adversary proceedings of a quasi-criminal
nature’’ in which “the requirements of procedural due
process must be met" before a disbarment order is entered.
In re Ruffalo (1968), 390 U.S. 544, p. 551; Willner v.
Committee on Character (1963), 373 U.S. 96, 102; Ex parte
Robinson, 19 Wall 505 (1874).
Before an attorney may be disbarred, he must have
notice of the charges against him and an opportunity to
defend himself against them. Ex parte Robinson, 19 Wall
505, 512 (1874).
Disbarment proceedings are limited by the due process
clause of the Fifth Amendment. In re Ruffalo (1968), 390
U.S. 544, Spevack v. Klein (1967), 383 U.S. 511; Ex Parte
Wall (1883), 107 U.S. 265.
The Court of Appeals in its opinion and judgment in this
matter held that the disbarment proceedings are to be held
on the record in the trial court.
Petitioner is unaware from what part of the record his
conduct was unprofessional. Petitioner desires to know
exactly what charge, what conduct in the record was
unprofessional.
This Court has held on numerous occasions that notice
8
of the charge is elementary; notice that fairly advises what
the Government proposes and especially when petitioner is
in a controversy with the Government, as here in a quasi
judicial contest. Citing: Morgan v. U.S., 304 U.S. 1, pg. 18.
19 (1938).
As stated in Morgan, supra, ‘he right to be heard
embraces not only the right to be heard, but the right to
know the claim of the opponent and to meet them.
Otherwise, the claim may be a barren one.
[2] Can a District Court punish for contempt of
court an attorney by suspending him from the practice
of law?
Although the suspension and disbarment hearing is
separate and distinct from the contempt proceeding, the
trial court judge initially disbarred petitioner, because of
his alleged contemptuous conduct.
Petitioner alleges the claim that he is being punished
twice by 18 U.S.C., Section 401. The only punishment a
court can levy for contemptuous conduct is a fine or
imprisonment. In Ex Parte Robinson, 1873, 86 U.S. 505, 19
Wall 505, 22 L. Ed. 207, this Court held that the disbarment
of an attorney as punishment for conduct was unauthorized
and void.
Petitioner contends that the U.S. District Court, and
especially the trial court, lacks the jurisdiction and the
power to disbar or suspend petitioner as the result of the
alleged contemptuous conduct. .
[3] What limits the power of the United States
District Court to employ summary contempt powers
against an attorney?
“That contempt power over counsel, summary or
9
otherwise, is capable of abuse is certain. Men who make
their way to the bench sometimes exhibit vanity,
irascibility, narrowness, arrogance, and other weakness to
which human flesh is heir.’’ Sacher v. U.S., 343 U.S. 1, 12,
96 L. Ed. 717 (1952).
“This course of events demonstrates the unwisdom of
vesting the judiciary with completely untrammeled power to
punish contempt, and makes clear the need for effective
safeguards against that power's abuse."' Bloom v. Illinois,
391 U.S. 194, 20 L. Ed. 522, 1968.
Congress to protect the innocent against the
untrammeled power of the courts to punish via the
summary contempt power enacted Title 18 U.S.C. Section
401, which reads as follows:
“A court of the United States shall have power to
punish by fine or imprisonment, at its discretion, such
contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so
near thereto as to obstruct the administration of
justice;
(2) Misbehavior of any kind of its officers in their
official transaction;
(3) Disobedience or resistance to its lawful writ,
process, order, rule, decree or command.”
Thus, summary contempt power procedure may not be
used where notice and hearing will be equally effective.
Harris v. U.S., (1965), 383 U.S. 162, (1965).
Accordingly, it remains the rule, as it has been for
nearly 150 years, the limits of the power to punish for
contempt are ‘the least possible power adequate to the end
proposed.’ Anderson v. Dunn, 1821, 6 Wheat. (19 U.S.)
204, 231, (1821),; In re Michael, 326 U.S. 224, 227 (1945)
Recent litigation has confirmed narrowly the power of
10
the court to find a lawyer guilty of contempt for his good
faith efforts to represent his client. In re McConnell, 370
U.S. 230 (1962).
In conclusion, this Court in Cammer v. U.S., 350 U.S.
399 (1956) on p. 404 and In re Michael, 326 U.S. 224 (1945)
p. 227 held that former and present Title 18 U.S.C., Section
401 ‘‘has construed the Act as embodying a congressional
plan to limit the contempt power to ‘the least possible power
adequate to the end proposed.’ See Anderson v. Dunn
(U.S.) 6 Wheat. 204, 231. We added, ‘The exercise by
federal courts of any broader contempt power than this
would permit too great inroads on the procedural
safeguards of the Bill of Rights, since contempts are
summary in nature, and leave determination of guilt to a
judge rather than a jury.’ ”
|4) In a criminal summary contempt of court
proceeding against an attorney, must there be a
compliance with Criminal Rule 427
There must be a compliance with Criminal Rule 42 in
summary contempt proceedings.
This was summary criminal contempt, since the
alleged contempt occurred in the presence of the court.
Criminal Rule 42(a) of the Federal Rules of Criminal
Procedure clearly mandates that the trial judge must certify
that he saw or heard the conduct constituting the contempt
that was committed in his actual presence. The certificate
must recite the facts and shall be signed by the judge and
entered of record.
Petitioner contends that if no certificate is filed, then
there is no contempt. There are many Court of Appeals’
citations to that effect. A few are: In re Williams,
11
(C.A.-5th), 1975, 509 F. 2d 940; U.S. v. Camil, (C.A.-5th),
1974, 497 F.2d 225; U.S. v. Schrimsher, (C.A.-5th), 1974,
493 F.2d 842; Pietsche v. President, (C.A.-2nd), 1970, 434
F.2d 861; U.S. v. Marshall, (C.A.-9th), 1971, 451 F.2d 372,
375.
[5] Was petitioner's conduct contemptuous so as
to be punished by summary action by the trial judge
The transcript of proceedings for December 14 and
15th, 1978, clearly demonstrates that petitioner's conduct
was not contemptuous.
Petitioner was not attempting to obstruct the court's
proceedings.
Petitioner was a confused attorney; petitioner was
valiantly attempting to ascertain from the trial court judge,
what was he doing wrong.
Petitioner requested clarification from the trial judge,
but the trial court judge response was that he was not here
to teach petitioner a course in evidence.
Petitioner never raised his voice to the trial court
judge; petitioner never argued with the trial court judge,
but petitioner attempted to question the witnesses as best
as he could.
The first time that petitioner was cited for contempt of
court was after a conference at the bench. The record is
devoid of what caused the trial court judge to cite petitioner
for contempt of court.
From a reading of the trial transcript, it can be ascer-
tained that opposing counsel did not object, but the trial
court judge did all the objecting and sustained his
objections.
The trial court judge not only found petitioner in
12
contempt of court three (3) times, but also found the
husband of a witness in contempt of court.
This court held in In re McConnell, 370 U.S. 230 (1962)
that it will grant certiorari to review a contempt conviction
where it is important to assure alert self-restraint in the
exercise by district judges of summary power for punishing
contempt.
Further in In re McConnell, supra, the Court held that
the power of the court to punish misbehavior summarily in
violation of 18 U.S.C. §401 rests upon an obstruction to the
performance of judicial duty resulting from an act done in
the presence of the court, and the existence of that element
(obstruction of the court) must be clearly shown in every
case where summary contempt power is exercised.
To preserve the kind of trials that the American
systems envisages, Congress has limited in 18 U.S.C. §401,
the summary power vested in courts of the United States to
the least possible power adequate to prevent actual
obstruction of justice.
Thus, the question in this case as in In re McConnell,
supra, is whether or not, it can be clearly shown on the
record that petitioner's conduct actually obstructed the
district court in the performance of judicial duty.
Petitioner alleges that there is nothing in the record
that he created an actual obstruction.
It is necessary to grant certiorari in this matter to
restrain the district court judge in his exercise of summary
contempt power.
It is necessary and essential that lawyers be able to
make honest good-faith efforts to present their clients’
cases. “An independent judiciary and a_ vigorous,
13
independent bar are both indispensable parts of our system
of justice.”’ In re McConnell, supra, page 236.
In the instant matter, the trial court never filed the
required certificate in compliance with Criminal Rule 42(a)
of the Federal Rules of Criminal Procedure.
Petitioner believes this to be a grievous and reversible
error,
CONCLUSION
Petitioner's reason for appealing the Court of Appeals’
order in this matter is that the necessary grounds for his
disbarment proceedings are missing. If there is to be a
disbarment proceeding, there must be notice of the
unprofessional conduct. Further, petitioner believes that
his conduct at trial was not contemptuous, but the trial
court judge himself objected as to how petitioner was
presenting the evidence. Opposing counsel did not object,
but the trial court judge objected.
Petitioner was bewildered and confused; did not
understand the reason for the trial court's objections, and
requested clarification from the trial court judge on many
occasions. The trial court's response to this was: “I am not
here to teach you the rules of evidence."’
Petitioner's conduct was not obstructionist, petitioner
was not attempting to delay the trial, but petitioner's
conduct and action was one of a confused and bewildered
attorney.
RELIEF ULTIMATELY SOUGHT
Petitioner believes that this court should rule that his
14
conduct was not contemptuous. If disbarment proceedings
are to proceed against petitioner, definite charges of what
constituted petitioner's unprofessional conduct should be
first leveled against petitioner.
Respectfully submitted,
WALTER S. HAFFNER
Attorney for Petitioner.
CERTIFICATE OF SERVICE
A copy of the foregoing Petitioner for Writ of Certiorari
and with Appendix was served upon Mr. Solomon Oliver,
Jr... Esq., Assistant U.S. Attorney, 400 U.S. Courthouse.
Cleveland, Ohio 44114, by United States mail, first class
postage prepaid, , 1979.
WALTER S. HAFFNER
Attorney at Law.
15
OPINION OF THE COURT OF APPEALS
(Filed May 4, 1979)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 79-3183
IN RE:
MILTON PHILIP SCHULMAN, ORDER
Petitioner-Appellant
Before: LIVELY and ENGEL, Circuit Judges and PHILLIPS,
Senior Circuit Judge.
In his notice of appeal Milton P. Schulman appeals
from an order of February 22, 1979, entered by the United
States District Court for the Northern District of Ohio,
Eastern Division, in a case styled ‘Barbara Ford, Plaintiff
v. Ken Kinzel, et al., Defendants’. It appears that two
orders were in fact entered that day, one fixing punishment
against petitioner Schulman for acts of contempt found by
the court to have been committed by him in the captioned
case on December 14 and 15, 1978, and in the presence of
the court, and the second striking Schulman's name from
the roll of attorneys authorized to appear and engage in the
practice of law before the bar of the United States District
Court for the Northern District of Ohio and imposing
conditions upon his readmission, as more particularly set
forth in that order.
16
While the notice of appeal does not designate which of
the two orders from which appeal is sought, the court treats
the error as non-jurisdictional and construes the notice to
apply to both orders.
With respect to the first order, finding Schulman in
contempt of court, the court finds that ample evidence
supports the trial judge's findings of contempt and that said
acts of contempt having been committed in his presence,
the trial court did not err in acting summarily thereon. Rule
42(a), Fed. R. Crim. Pro.
With respect to the second order, the court rejects
appellant's claim that the district court was without power
to disbar Schulman for his misconduct. While 18 U.S.C,
§401 (1976) prescribes the punishments which may be
imposed for criminal contempt, the power to disbar an —
attorney proceeds not from the power to punish
contemptuous conduct but from ithe court's power to
supervise attorneys admitted to practice before it. Ex parte
Robinson, 86 U.S. (19 Wall.) 505, 512-13 (1873).
Consequently, the remedies for attorney misconduct are not
limited to those specified in 18 U.S.C. §401. See id. at 512;
Rule 2(g), Rules of the United States District Court for the
Northern District of Ohio.
We agree with appellant, however, that the court
below erred in the procedures it employed in disbarring
Schulman. There appears to have been no pressing need to
proceed to adjudicate the charge upon the short notice
afforded in the instant case, Moreover, it is evident from
the record that marked personal feelings were present on
both sides, and it appears that Schulman’s conduct left
personal stings, however justified. Mayberry v. Pennsyl-
17
vania, 400 U. S. 455, 464 (1971). We conclude that the tria!
judge should more properly have recused himself and
referred the matter for disposition before another judge.
Taylor v. Hayes, 418 U.S. 488, 501-03 (1974); Cf. Rule 42(b),
Fed. R. Crim. Pro.
We hold that upon remand, the case should be
reassigned and Schulman should be afforded the
opportunity to address the charges, through counsel if he so
elects, after a reasonable time to examine the record of the
trial in Ford v. Kinzel, supra, and the transcript of the show
cause hearing on December 20, 1978. In so holding, we
recognize that Schulman’s opportunity to be heard need not
contemplate a full-scale trial, particularly since the matter
largely turns upon an evaluation of the record. See Taylor
v. Hayes, supra, 418 U.S. at 499. Accordingly,
IT IS ORDERED that the order of the district court first
above referred to, finding petitioner in contempt of court as
therein set forth, is affirmed.
IT IS FURTHER ORDERED that the order disbarring
Schulman is vacated and the cause remanded for further
proceedings consistent with this order.
ENTERED BY ORDER OF THE COURT
(signed) John P.Hehman
Clerk
18
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BARBARA FORD, CASE NO. C 78-1169
Plaintiff, : Judge Robert B. Krupansky
-vs- :
KEN KINZEL, et al., : AFFIDAVIT OF BIAS AND
Defendants. —_—_: PREJUDICE
Now comes the attorney for the defendants, Ken Kinzel
and Naomi Kinzel, pursuant to 28 U.S.C.A. 144, and
submits the within Affidavit of Bias and Prejudice relating
to the qualification of the Honorable Robert B. Krupansky to
hear the within cause.
This Affidavit is submitted upon the following grounds:
that the Honorable Robert B. Krupansky has a personal
bias and prejudice against attorney for the defendants, Milt
Schulman.
AFFIDAVIT
MILT SCHULMAN, being first duly sworn, deposes and
states as follows:
That he ‘s the attorney for the defendants, Ken Kinzel
and Naomi Kinzel, in the within action.
That this case involves an alleged violation of civil
rights of the plaintiff, Barbara Ford, and has been assigned
to the Honorable Robert B. Krupansky.
That in the case of City of Cleveland vs. The Cleveland
klectric Illuminating Company, being Civil Action No. C
19
75-560, the Honorable Robert B. Krupansky is the presiding
judge.
That prior to March 1, 1978, the Honorable Robert B.
Krupansky issued several judgments against the City of
Cleveland in the aforementioned case and ordered that the
City pay the judgments, which amounted to, on or about
March 1, 1978, approximately $19 million before December
31, 1978.
That the Affiant visited the offices of the Honorable
Robert B. Krupansky and was met by the Law Clerk who
served Judge Krupansky.
That Affiant told the Law Clerk that he wished to
discuss with the Judge the possibility of purchasing the
judgment liens from the Cleveland Electric Illuminating
Company and wanted to discuss the method of purchasing
those liens with the Court. :
That the Law Clerk thereupon started questioning the
Affiant as to how, what, when, and why Affiant wanted to
talk to the Judge and how Affiant was interested in
purchasing the judgment liens from the Cleveland Electric
Illuminating Company.
That Affiant thereupon told the Law Clerk that he was
not interested in speaking to the Law Clerk, but that he
came to visit Judge Krupansky and discuss it with the Judge
and not with the Law Clerk.
That the Law Clerk thereupon stated to the Affiant:
‘You are not showing deference to the Court."
That Affiant thereupon told the Law Clerk that he was
not a judge and that Affiant showed deference to no one,
but he does show respect to a court and told the Law Clerk
that he should inform the Judge that Affiant was there and
20
requested that Judge Krupansky call him to make an
appointment for him to come in to see the Judge.
That apparently, the Law Clerk was not happy with the
fact that Affiant did not pay deference to him and there-
after, when Judge Krupansky arrived in his office, evidently
told him that Affiant was very abusive to him, which was
not true.
That the next day, Judge Krupansky called counsel for
the City of Cleveland in the case of City of Cleveland vs. The
Cleveland Electric Illuminating Company, being Case No. C
75-560, into his chambers and recounted the story that his
Law Clerk had told him about Affiant’s visit and stated that
he was exercised over Affiant’s visit and behavior, as
recounted to him by the Law Clerk, and in the presence of
the attorney for the City of Cleveland called in a court
reporter and made a record of what his Law Clerk allegedly
told him transpired during Affiant’s visit to the Court’s
offices.
That Judge Krupansky then ordered that the record be
placed under seal and filed with the record in the case of
City of Cleveland vs. The Cleveland Electric Illuminating
Company, being Case No. C 75-560.
That Judge Krupansky did not call Affiant to discuss or
to find out exactly what happened in his office when Affiant
was there, and Affiant was not aware of the proceedings
held by the Court in reference to his visit to the Judge’s
offices until several months thereafter.
That Affiant was retained by the defendants in this
action, Ken Kinzel and Naomi Kinzel, to defend them in the
Complaint filed against them by the plaintiff, and was not
21
treated by the Court in a manner in which an attorney is
ordinarily treated, but was belittled and demeaned by the
Court during the hearing held on October 30, 1978.
That the captioned case is set for trial on December 13,
1978, and yesterday, November 30, 1978, Affiant called
Judge Krupansky, who was busy in court, and left a
message for the Judge.
That the Law Clerk, by the name of Mr. Kennedy,
called Affiant and asked what he wanted to speak to the
Judge about, and Affiant informed Mr. Kennedy that it was
a personal matter and that he would only discuss the
purpose of the call with Judge Krupansky.
That about 3:00 p.m. yesterday, November 30th, Judge
Krupansky called the Affiant and Affiant told Judge
Krupansky that he would like to know where he stood with
the Judge, in view of the fact that when he appeared in the
offices of his Honor on March 4th or 5th, 1978, his Honor,
instead of calling Affiant, called the attorney for the City
with whom Affiant had no contact nor interest in the trial
and went through the procedure as stated above.
That Judge Krupansky was very short, did not want to
discuss the reason for not calling Affiant in after the Law
Clerk had informed his Honor of Affiant's visit on March
3rd or 4th, and then hung up.
That at 3:20 p.m., November 30, 1978, Affiant received
a call from Mr. Kennedy, Judge Krupansky’s Law Clerk and
was told that Affiant should file an Affidavit of Bias and
Prejudice.
That because of the foregoing, there is no question in
Affiant’s mind iat the Honorable Robert B. Krupansky is
biased and prejudiced as to Affiant, and, as a result of the
22
bias and prejudice against the Affiant, Affiant’s clients will
be prejudiced.
For the foregoing reasons, Affiant has determined that
the Honorable Robert B. Krupansky is not qualified to
preside in the captioned case and, therefore, should
disqualify himself and have the case assigned to another
judge for hearing.
(signed) Milt Schulman
MILT SCHULMAN
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
SWORN TO BEFORE ME and subscribed in my
presence this 1st day of December, 1978.
(signed) Dolores M. Scully
NOTARY PUBLIC
SERVICE
A copy of the foregoing was sent this ist day of
December, 1978 to Mr. Avery Friedman, Esq., 706 Citizens
Building, Cleveland, Ohio 44114.
(signed) Milt Schulman
MILT SCHULMAN
748 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
(216) 621-0580
Attorney for Defendants Ken Kinzel
and Naomi Kinzel.
23
THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
(Filed December 8, 1978)
BARBARA FORD, ) CIVIL ACTION NO. C78-1169
Plaintiff )
v.
KEN KINZEL, et al.,
Defendants
KRUPANSKY, J.
This is a civil action instituted by the plaintiff, Barbara
Ford, a black female, pursuant to 42 U.S.C. §§1981 and
1982, to redress alleged racial discrimination in the rental
of private property practiced against her by the
defendants, Ken Kinzel and Naomi Kinzel.
The defendants’ legal counsel, Milton Schulman
(Schulman), has filed an Affidavit of Bias and Prejudice to
disqualify. the Honorable Robert B. Krupansky as the
presiding judge in the above captioned action. The affidavit
is grounded on an incident that occurred on March 6, 1978.
On that date at approximately 10:00 a.m. Schulman entered
the Court's offices and repeatedly, in an abusive manner,
demanded to confer with the Judge, who was then confined
to his home with an illness. Schulman insisted on
discussing, in private, City of Cleveland v. The Cleveland
Electric Illuminating Co., No. C75-560, a civil action, then,
and presently pending before the Court. He was neither
legal counsel in, nor a party to, the case. Court personnel
advised Schulman of the Judge’s absence and of the Court's
24
policy not to discuss pending litigation absent the presence
of all interested legal counsel. Schulman thereupon, in a
provocative display of agitated emotion, repeated his
demand to privately confer with the Judge and proceeded to
excoriate Court personnel for frustrating his undertaking.
On the following day, en route to the doctor's office,
the Judge, while conferring with his staff, was advised of
the incident. In an effort to avoid embarrassment to the City
of Cleveland, its Mayor, and, particularly, its Director of
Law, Jack Schulman, the son of attorney Milton Schulman,
the Judge related the contemptuous incident to William B.
Norris (Norris) of Hahn, Loeser, Freedheim, Dean &
Wellman, counsel of record for the City of Cleveland in Civil
Action No. C75-560, who had been requested to appear in
the Court’s chambers. The Court suggested to Norris that
he advise the Law Director of his father’s intemperate
conduct and direct him to cease and desist from future
improprieties. Norris, expressing appreciation for the
Court's consideration, agreed to the Court's suggestion. On
the following day, Norris reported that he had conveyed the
Court's request and extended the Law Director's apologies
and assurances that there would be no reoccurrence of the
incident. Thereafter, the incident was forgotten by the
Court until November 30, 1978 when Schulman attempted to
revive the facts of the incident of March 6 during a polemic
telephone conversation initiated by him for that purpose
and presumably within the context of this action. The Court
refused to be engaged. On that same date, the Court
instructed its clerk to advise Schulman of his right to
formally present any issue in controversy to the Court by
appropriate pleadings. This Affidavit of Bias and Prejudice
25
thereafter resulted.
28 U.S.C. §144 provides the procedure and circum-
stance for recusing a United States district judge from
presiding in a case assigned to his docket and states in
pertinent parts as follows:
The affidavit shall state the facts and the
reasons for the belief that bias or prejudice exists,
and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to
be heard, or good cause shall be shown for failure to
file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is
made in good faith.
The criteria for evaluating the sufficiency of the allega-
tions contained in an affidavit filed pursuant to §144, was
restated by the Court of Appeals for the District of Columbia
in United States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir.
(1976), cert. denied sub nom. Mitchell, et al. v. United
States, 431 U.S. 933, rehearing denied, 433 U.S. 916 (1977).
as follows:
Section 144 specifies that “(t)he affidavit”
supporting a motion thereunder ‘‘shall state the facts
and the reasons for the belief that bias or prejudice
exists," and it does so for the best reasons. This
provision, like the accompanying mandate that
counsel of record certify that the affidavit is made in
good faith, was designed to guard against groundless
claims and the impositions they would inflict on the
judicial process. To achieve that end, the courts
have consistently held that the affidavit must meet
exacting standards. It must be strictly construed; it
must be definite as to time, place, persons and
circumstances. Assertions merely of a conclusory
nature are not enough, nor are opinions or rumors.
And the affidavit ‘‘must give, fair support to the
26
charge of a bent of mind that may prevent or impede
impartiality of judgment.’’ (citations in footnotes
omitted)
See also, Berger v. United States, 255 U.S. 22, 32-35 (1921);
United States v. Haldeman, supra at 131; United States v.
Bell, 351 F.2d 868, 878 (6th Cir. 1965), cert. denied, 383 U.S.
947 (1966).
Initially, it should be noted that the right extended by
28 U.S.C., §§144 and 445 is to a real party in interest to the
litigation and not legal ‘counsel. The sections, moreover,
mandate that legal counsel of record certify the affidavit as
having been made in good faith by such real party in
interest. Non-compliance with the foregoing is apparent
from the face of the pleading presently before the Court.
Davis v. Bd. of School Com'rs of Mobile County, 517 F2d
1044, 1052 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976),
We thus hold that an appellate court, in passing on
questions of disqualification of the type here
presented, should determine the disqualification on
the basis of conduct which shows bias or prejudice
or lack of impartiality by focusing on a party rather
than counsel. The determination should also be
made on the basis of conduct extra-judicial in nature
as distinguished from conduct within a_ judicial
context.
Accord, Smith v. Danyo, 441 F. Supp. 171 (M.D. Pa. 1977);
United States v. Nehas, 368 F. Supp. 435 (W.D. Pa. 1973).
As concomitant statutory provisions, §144 and §455
must be construed in pari materia, Davis v. Bd., supra at
1052: °
The determination (of disqualification) should also
be made on the basis of conduct extra-judicial in
nature as distinguished from conduct within a
judicial context. This means that we give §§144 and
27
455 the same meaning legally for these purposes,
whether for purposes of bias and prejudice or when
the impartiality of the judge might reasonably be
questioned.
Inasmuch as the thrust of 28 U.S.C. §§144 and 445 is to
provide relief to a party in interest to litigation under
defined circumstances resulting from extra-judicial conduct
as distinguished from conduct within a judicial context, the
mere fact that defendants’ legal counsel was the subject of
previous judicial action in an unrelated judicial proceeding
or even a judicial contempt for conduct before the court
during previous judicial proceedings unrelated to the
defendants would not support or warrant the Judge's
disqualification from a pending case.
Naomi Kinzel and Ken Kinzel were in no way involved
or related to the March 6, 1978 incident, the genesis of
which was an unrelated judicial proceeding.
Prior to the hearing on the plaintiff's Motion for
Preliminary Injunction on September 22, 1978, Naomi
Kinzel and Ken Kinzel were strangers to the Court. Except
for the March 6 incident and his Court appearance on
September 22, 1978, Schulman was equally a stranger to
the Court. More importe atly, this civil proceeding is but one
of many assigned by the Clerk to this Court. Contrary to the
implications of Schulman’s affidavit, the Court views him as
impersonally as it does any other attorney appearing before
it, and shall administer the trial of this cause in an equally
impersonal manner, preserving the rights of the plaintiffs
and defendants alike by permitting a jury to arrive at
whatever conclusion it may find from the evidence.
Conduct on the part of any attorney, however, which
28
frustrates and/or demeans the orderly procedures imposed
by the rules of the United States District Court for the
Northern District of Ohio, the Federal Rules of Civil
Procedure, Federal Rules of Evidence, and the rules and
Orders of this Court will not be countenanced.
Accordingly, for the reasons aforesaid, and the insuf-
ficiency of the affidavit on its face in failing to comply with
the exacting standards and requirements of 28 U.S.C.
§§144 and 445, Schulman's Affidavit of Bias and Prejudice
is hereby dismissed.
IT IS SO ORDERED.
(signed) Robert B. Krupansky
United States District Judge
29
THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
(Filed December 20, 1978)
In Re: )
MILTON SCHULMAN ) NOTICE OF HEARING
) AND ORDER
KRUPANSKY, J.
It appearing to the Court that Milton Schulman, an
attorney admitted to practice before the United States
District Court for the Northern Dictrict of Ohio pursuant to
Rule 2 of the Local Civil Rules of said Court, did throughout
the prosecution of Civil Action No. C78-1169, styled
Barbara Ford v. Ken Kinzel, et al., knowingly and
intentionally comport himself in an unprofessional manner
designed and calculated to frustrate, delay, and demean
the orderly process of justice and administration of the
Court, in deliberate disregard of the requirements of the
Federal Rules of Civil Procedure, the Federal Rules of
Evidence, the Local Civil Rules of the United States District
Court for the Northern District of Ohio, and the specific
rules and Orders of this Court; and did, despite the
repeated requests, admonitions, and Orders of the Court,
persist in an irresponsible course of conduct which
obstructed, delayed, and demeaned the due administration
of justice and the orderly conduct of this Court's business:
Now, therefore, IT IS HEREBY ORDERED that the said
Milton Schulman appear before this Court on December 20,
1978 at 1:30 p.m. to give account for his conduct and to
show cause why the Clerk of the United States District
30
Court fer the Northern District of Ohio should not be
ordered to strike the name of Milton Schulman from the
rolls of attorneys authorized to appear before and engage in
the practice of law in the United States District Court for
the Northern District of Ohio.
IT IS FURTHER ORDERED that the United States
Marshal shall personally serve a certified copy of this
Order upon Milton Schulman in accordance with law.
IT IS SO ORDERED.
(signed) Robert B. Krupansky
United States District Judge
31
THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
(Filed February 22, 1979
BARBARA FORD, ) CIVIL ACTION NO. C78-1169
Plaintiff )
Vv. )
KEN KINZEL, et al., )
Defendants | ) MEMORANDUM AND
In Re: MILTON PHILIP ) ORDER
)
SCHULMAN
KRUPANSKY, J.
In accordance with the Memorandum decision of
February 21, 1979, the Clerk of the United States District
Court for the Northern District of Ohio, Eastern Division, is
hereby:
1.
ordered to strike the name of Milton Philip
Schulman from the roll of attorneys authorized to
appear and engage in the practice of law before
Bar of the United States District Court for the
Northern District of Ohio; and
enjoined from accepting any application from or on
behalf of Milton Philip Schulman for admission, re-
admission and/or reinstatement to appear and
engage in the practice of law before the Bar of the
United States District Court for the Northern
District of Ohio for a period of not less than two (2)
years from February 21, 1979; and
3.
32
enjoined thereafter from entering the name of
Milton Philip Schulman upon the roll of attorneys
authorized to appear and engage in the practice of
law before the Bar of the United States District
Court for the Northern District of Ohio until such
time as the said Milton Philip Schulman has com-
plied with the requirements specified in the
Memorandum decision of February 21, 1979 and
until further order of this Court.
IT IS SO ORDERED.
(signed) Robert B. Krupansky
United States District Judge
33
THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
(Filed February 22, 1979)
BARBARA FORD, ) CIVIL ACTION NO. C78-1169
Plaintiff )
Vv. )
KEN KINZEL, et al., )
Defendants )
In Re: MILTON PHILIP ) MEMORANDUM AND
SCHULMAN ) ORDER
KRUPANSKY, J.
It appearing to the Court that on December 14, 1978,
within the presence of the Court during the trial of civil
action C78-1169 styled Barbara Ford v. Ken Kinzel, et al.,
defendants’ attorney, Milton Philip Schulman (Schulman)
did knowingly and wilfully pursue a course of conduct
designed and calculated to disrupt the orderly administra-
tion of the proceedings by repeatedly disregarding the
requests, admonitions and orders cf this Court in the
examination of a witness as is more fully disclosed by the
record of these proceedings whereupon the Court imposed
a finding of summary contempt against Schulman and
levied a fine of $250.00.
Thereafter, on December 15, 1978, Schulman persisted
in his factitious outbursts and provocative conduct
calculated to disrupt the orderly administration of the Court
as is disclosed by the record herein requiring the imposition
of two additional separate findings of summary contempt,
together with two additional levies in the amount of $500.00
each against Schulman.
NOW, THEREFORE, it is hereby adjudged that the
conduct of Schulman on December 14 and 15 of 1978, in the
presence of the Court during the trial of civil action
C78-1169 styled Barbara Ford v. Ken Kinzel, et al.
constituted separate acts of contempt of this Court in
violation of 18 U.S.C. §401 (1) and a fine in the amount of
$250.00 is hereby imposed for the contemptuous act of
December 14, 1978, and a fine in the amount of $500.00 is
34
hereby levied upon the said Schulman for each of the
contemptuous acts that occurred on December 15, 1978
pursuant to 18 U.S.C. §401(1).
The course of conduct pursued by Schulman, both
before and during the administration of this trial and the
gravity of his persistent, contumacious conduct throughout
the prosecution of this civil action and his total disregard of
the requirements of the Federal Rules of Civil Procedure,
the Federal Rules of Evidence, the Local Civil Rules of the
United States District Court for the Northern District of
Ohio, the rules and orders of this Court, the Ethical
Considerations of the American Bar Association Code of
Professional Responsibility, together with his demonstrated
total disregard of standards of professional courtesy,
competence and deportment as reflected in his calculated
and wilful endeavor to subvert the procedures mandated by
the rules and Orders governing this Court necessary for the
due administration of justice have necessitated this Court to
Order the name of Milton Philip Schulman to be stricken
from the roll of attorneys authorized to appear and engage
in the practice of law before the bar of the United States
District Court for the Northern District of Ohio for the
reasons more fully set forth in this Court's Memorandum
and Order dated February 21, 1979.
In view of the suspension of Schulman from appearing
and engaging in the practice of law before the United States
District Court for the Northern District of Ohio for a
minimum period of two years pursuant to this Court’s Order
of February 21, 1979, it is further adjudged and decreed
that, upon the payment of $50.00 to the Clerk of the United
States District Court for the Northern District of Ohio by the
contemnor by not later than March 26, 1979, the balance of
$200.00 constituting the fine imposed for the contemptuous
acts of December 14, 1978 is suspended; that upon the
payment of $100.00 by the contemnor to the Clerk of ie
United States District Court for the Northern District of
Ohio by not later than March 26, 1979, as against each of
the $500.00 separate fines levied for the contemptuous acts
of December 15, the balance of $400.00 in each instance is
suspended. ! ”
IT IS SC ORDERED.
(signed) Robert B. Krupansky
United States District Judge
' The aggregate payment intended by the contemnor for all three fines is
$250.00
36
THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
(Filed February 21, 1979)
BARBARA FORD, ) CIVIL ACTION NO. C78-1169
Plaintiff )
Vv. )
KEN KINZEL, et al., )
Defendants )
In Re: MILTON PHILIP ) MEMORANDUM AND
SCHULMAN ) ORDER
KRUPANSKY, J.
This is a proceeding instituted pursuant to the Local
Civil Rules of the United States District Court for the
Northern District of Ohio to ascertain the continued fitness
of the respondent, attorney Milton Philip Schulman
(Schulman), to engage in the practice of law before this
Court, in view of his conduct throughout the prosecution of
this civil action, and his disregard of the requirements of
the Federal Rules of Civil Procedure, the Federal Rules of
Evidence, the Local Civil Rules of the United States District
Court for the Northern District of Ohio, and the rules and
orders of this Court.
The Court and the Bar are charged with the duty to
efficiently and economically utilize the time and effort of
jurors, witnesses, parties, counsel, and the Court to effec-
tively advance the administration of justice by affording
litigants an opportunity for a clear, concise, and objective
exposition of facts and issues. Accordingly, as embodied in
the mandatory Ethical Considerations of the Code of
37
Professional Responsibility of the American Bar Association,
judicial proceedings must ‘‘be conducted through dignified
and orderly procedures designed to protect the rights of all
parties. Although a lawyer has the duty to represent his
client zealously, he should not engage in any conduct that
offends the dignity and decorum of proceedings. . . ."’ The
personal animosities of litigants must not be reflected in the
“conduct, attitude, and demeanor” of legal counsel toward
other attorneys, witnesses and the Court; personal
references to witnesses, opposing counsel or the Court and
‘‘(h)aranguing and offensive tactics by lawyers interfere
with the orderly administration of justice and have no
proper place in our legal system,’ EC7-37.
As the Supreme Ccurt stated in the context of a
criminal trial in Illinois v. Allen, 397 U.S. 337, 343,
rehearing denied, 398 U.S. 915 (1970), ’’(i)t is essential to
the proper administration of . . . 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.” Just as ‘‘trial judges confronted with
disruptive, contumacious, stubbornly defiant defendants
must be given sufficient discretion to meet the circum-
stances of each case,”’ so all the more must the Court
vigorously constrain counsel from engaging in conduct
which undermines the ‘‘dignity, order, and decorum”’
necessary to the due administration of judicial proceedings,
id.
These principles were recognized by the Supreme
Court in In re Isserman, 345 U.S. 286, 289 (1953), wherein
the court stated as follows:
38
There is no vested right in an individual to practice
law. Rather there is a right in the Court to protect
itself, and hence society, as an instrument of justice.
That to the individual disbarred there is a loss of
status is incidental to the purpose of the Court and
from its rolls one who has engaged in conduct incon-
sistent with the standard expected of officers of the
Court.
Thus, as the Court of Appeals for the Seventh Circuit
observed in In re Echeles, 430 F.2d 347, 350 (7th Cir. 1970),
the real question at issue in a disbarment proceeding
is the public interest and an attorney’s right to
continue to practice a profession imbued with public
trust. In re Fisher, 179 F.2d 361 (7th Cir. 1950), cert.
denied sub nom. Kerner, et al. v. Fisher, 340 U.S.
825, 71 S.Ct. 59, 95 L.Ed. 606 (1950).
To insure an orderly and expeditious resolution of this
litigation, the Court directed the attention of legal counsel
for both parties to the provisions of the Federal Rules of
Civil Procedure, the Federal Rules of Evidence, and the
Local Civil Rules of the United States District Court for the
Northern District of Ohio in its Initial Order of September
11, 1978 and again during the final pretrial conference
conducted in this action on December 12, 1978, and, in
particular, at the commencement of the trial, reviewed and
orally stated to counsel the specific requirements of this
Court’s Order No. 9-24-76, styled Courtroom Procedure,
which prescribes, inter alia, the manner in which counsel
shall conduct the examination and cross-examination of
witnesses, and the standards of conduct and decorum by
which counsel shall abide throughout the trial. (A copy of
the relevant portions of Order No. 9-24-74 is attached
hereto as exhibit A).
39
Nonetheless, despite the Court's efforts to acquaint
counsel with these procedural requirements prior to trial,
and the Court's repeated requests, admonitions, and orders
to Schulman throughout the course of the week-long trial to
conform with the Federal Rules of Civil Procedure, the
Federal Rules of Evidence, the Local Rules of the United
States District Court for the Northern District of Ohio, and
the requirements and orders of this Court, Schulman
persisted in his wilful disregard of the most elementary
standards of professional conduct in a calculated effort to
disrupt and obstruct the resolution of this litigation, as
more particularly set forth hereafter. Schulman’s conduct
is all the more reprehensible because it was flagrantly and
wilfully intended to publicly obstruct and discredit judicial
proceedings, thereby depriving the litigants of their right to
an orderly and objective resolution of their dispute, which
action required the Court’s immediate response to this
demonstrated unprofessional behavior. See Koden v.
United States Dept. of Justice, 564 F.2d 228 (7th Cir. 1977):
Matter of Abrams, 521 F.2d 1094 (3rd Cir.), cert. denied
sub nom. U. S. Dist. Court for the Dist. of N. J. v. Abrams,
423 U.S. 1038 (1975); Feldman v. State Board of Law
Examiners, 438 F.2d 699 (8th Cir. 1971); In re Carroll.
supra; Flaska v. Little River Marine Constr. Co., 389 F.2d
885 (5th Cir. 1968); In re Rhodes, 370 F.2d 411 (8th Cir.
1967); Mattice v. Meyer, 353 F.2d 316 (8th Cir. 1965), cert.
denied, 389 U.S. 820 (1967).
Unlike ordinary disbarment proceedings, resulting
from third party grievances, or similar type conduct
necessitating the evolution of an evidentiary basis upon
which to insure an informed appellate review, the case at
40
bar arises from a course of conduct pursued by Schulman
in the presence of the Court, the jury, and the public during
the trial of this case, which conduct is fully and accurately
demonstrated, recorded and disclosed in reviewable form
by the transcript of the record of the proceedings. No single
incident or combination of incidents taken out of the context
of the record in its entirety, including three separate
findings of contempt against Schulman during the trial, can
more precisely convey his total demonstrated disregard for
the Federal Rules of Civil Procedure, the Rules of the United
States District Court for the Northern District of Ohio,
Ethical Considerations of the American Bar Association
Code of Professional Responsibility, and the rules, requests,
admonitions and Orders of the trial court. It is upon that
reviewable record, in its entirety, that the Court anchors its
findings of fact and conclusions of law. See In Re Carroll,
416 F.2d 585 (10th Cir. 1969) (per curiam), cert. denied, 396
U.S. 1011 (1970). Immediately upon the submission of the
case to the jury for its deliberation and judgment, but prior
to the verdict, the Court conducted a hearing wherein
Schulman was afforded, after written notice, an
opportunity to show cause why his name should not be
stricken from the roll of attorneys authorized to appear and
engage in the practice of law before the United States
District Court for the Northern District of Ohio, pursuant to
the local rules of the Court and in conformity with the
pronouncements of the Supreme Court in In re Isserman,
supra, and In re Ruffalo, 390 U.S. 544, rehearing denied,
391 U.S. 961 (1968), quoting and following Randall v.
Brigham, 7 Wall. 583, 540 (1868):
41
It is not necessary that proceedings against
attorneys for malpractice, or any unprofessional
conduct, should be founded upon formal allegations
against them. Such proceedings are often instituted
upon information developed in the progress of a
cause; or from what the court learns of the conduct
of the attorney from its own observation. Sometimes
they are moved by third parties upon affidavit; and
sometimes they are taken by the court upon its own
motion. All that is requisite to their validity is that,
when not taken for matters occurring in open court,
in the presence of the judges, notice should be given
to the attorney of the charges made and opportunity
afforded him for explanation and defense. The
manner in which the proceeding shall be conducted,
so that it be without oppression or unfairness, is a
matter of judicial regulation.
A review of the record discloses that Schulman know-
ingly and wilfully pursued a course of conduct both prior to
and throughout the trial of this cause designed and
calculated to disrupt the orderly resolution of this litigation,
as follows:
1. The final pretrial hearing scheduled for December
11, 1978, pursuant to the Court's Order of October 31, 1978
was required to be aborted and rescheduled because
Schulman, at the hearing, advised the Court that he had
disregarded the Court's Order of September 11, 1978 and
had:
(a) failed to identify, mark and exchange proposed
exhibits with opposing counsel on November 29, 1978 as
ordered by the Court;
(b) failed to inform opposing counsel on November 29,
1978 of testimony intended to be introduced at trial by way
of deposition as ordered by the Court;
(c) failed to file with the Court by not later than
42
December 11, 1978 a _ sequential index listing all
documentary and non-documentary exhibits intended to be
used at trial as ordered by the Court;
(d) failed to identify, mark and file with the Court and
opposing counsel by not later than December 11, 1978,
exhibits intended to be used at trial as ordered by the Court;
(c) failed to consult with opposing counsel prior to
December 11, 1978 to eliminate duplicate exhibits;
(f) failed to prepare and file with the Court prior to
December 11, 1978 a witness list as ordered by the Court;
(g) failed to inform the Court and opposing counsel by
not later than December 11, 1978 of an intent to introduce
testimony by way of deposition as ordered by the Court;
(h) generally, intentionally and deliberately ignered,
without reason, every pretrial Order of the Court intended
to facilitate an orderly and efficient trial.
2. Throughout the opening and closing arguments and
interrogation of witnesses by opposing counsel, Schulman
persisted in calculated efforts to distract the attention of
the Court and the jury by:
(a) unnecessary and noisy activity at counsel table and
roaming about the courtroom; ‘
(b) standing at counsel table;
(c) shuffling papers, books, and documents;
(d) conferring with his clients in tones audible to the
judge and jurors; and
(e) repeatedly ignoring the Court’s requests and
instructions to cease and desist in this misbehavior.
3. The respondent persisted in advancing comments,
statements and arguments at side-bar conferences in
audible tones calculated to reach the jury, accompanied by
43
facial expressions and gestures intended to be observed by
the jury, in disregard of the Court's requests, admonitions,
and orders to refrain from such conduct.
4. The respondent persisted in directing leading
questions to his own defense witnesses, indifferent of the
requirements of the Federal Rules of Evidence and the
repeated requests and instructions of the Court.
5. The respondent persisted in framing questions, both
on direct and cross-examination, incorporating suggestions,
innuendos, and/or insinuations accompanied by vocal
inflections in a manner calculated to influence or prejudice
the jury, ignoring the Court's numerous requests,
admonitions and orders to cease and desist.
6. The respondent persisted in interrupting witnesses,
thereby precluding them from completing answers,
repudiating the Court’s requests, admonitions and orders.
7. The respondent persisted in interrupting opposing
counsel in his direct and cross-examination of witnesses by
interposing objections before questions were completed, in
disregard of the Court’s requests, admonitions, and orders
to Schulman to state his objections in the proper manner
and at the appropriate time.
8. \The respondent persisted in asking multiple
questions in the form of a single interrogatory to the
confusion of witnesses, rejecting the Court's requests,
admonitions and orders to proceed in a proper manner.
9. The respondent persisted in pursuing repetitious
avenues of inquiry, despite the Court’s numerous instruc-
tions to refrain from such practice.
10. The respondent persisted in stating or alluding to
matters obviously irrelevant to the cause, or matters which
44
could not be supported by admissible evidence, in disregard
of the Court's requests to comply with the Federal Rules of
Evidence and the rules of the Court.
11. The respondent persisted in pursuing avenues of
inquiry having no basis in admissible evidence and
designed solely to embarrass and demean witnesses and to
influence and prejudice the jury.
12. The respondent demeaned and disparaged the
plaintiff and her witnesses by incorporating into questions
conclusory statements and suggestions of his personal
opinion as to the justness of the cause, the credibility of
witnesses, and the culpability of the plaintiff and her
witnesses, and by conducting his interrogation in a loud
and provocative manner accompanied by expressions and
gestures, ignoring the Court’s repeated requests, admoni-
tions, and orders to conduct courteous, proper and
probative examination of witnesses.
13. The respondent persisted in attempting to engage
in unnecessary dialogue with witnesses, opposing counsel,
and the Court in the presence of the jury, in disregard of the
Court’s requests, admonitions and orders to cease and
desist.
14. The respondent persisted in advancing provocative
arguments following rulings by the Court upon objections,
despite the Court's repeated instructions to cease and
desist.
15. The respondent exhibited and admitted complete
unpreparedness and disorganization, as well as unfamiliar-
ity with identified exhibits and references thereto, resulting
in inordinate delays in the trial and the necessity of
conducting voir dire examination of several defense
45
witnesses.
16. The respondent repeatedly advanced specious
motions and arguments, unsupported by legal authority.
and demanded that the Court respond thereto. For
example, Schulman purported to reserve presentation of
voir dire questions to the jury panel until the conclusion of
all the evidence; he requested a directed verdict upon
concluding direct examination of his first defense witness
and prior to cross examination; he moved to instruct the
jury that the standard of proof in 42 U.S.C. §1981 cases was
proof beyond a reasonable doubt, rather than a
preponderance of the evidence; and he steadfastly argued
that equitable and declaratory relief, as distinguished from
damages, could properly be awarded by a jury rather than
the Court. :
17. The respondent engaged in factitious outbursts in a
loud and bellicose manner calculated to prejudice the jury.
such as his irascible demands for a mistrial in the presence
of the jury, and his agitated demand that the jurors be
ordered from the courtroom so that he could present
additional arguments and motions.
18. Schulman fell asleep during the lengthy voir dire
examination of the plaintiff's deposition, prompted by his
untimely demand to read the testimony to the jury.
19. The respondent intentionally misread and
misquoted the deposition of a witness, David Gelzer, during
Gelzer’s voir dire examination, in an effori to embarrass the
witness and mislead the Court.
20. Schulman’s continuous provocative outbursts, and
quarrelsome interruptions of witnesses, the Court, and
opposing counsel necessitated repeated removal of the
46
jurors from the courtroom in order to accommodate his
agitated emotionalism and to avoid contamination of the
jury.
The Court finds, upon the record in its entirety, that
Schulman’s conduct preliminary to and throughout the trial
of this case not only demonstrated a total disregard for
fundamental standards of professional courtesy, compe-
tence, and deportment, but reflected a calculated and
wilful endeavor to subvert the orderly procedures
mandated by the rules and orders governing the practice of
law in this Court, necessary for the due administration of
justice. Schulman's actions, individually and collectively,
demonstrated disregard for the mandatory Ethical Consid-
erations of the American Bar Association Code of
Professional Responsibility, and in particular constituted
flagrant violations of the Code’s Disciplinary Rule 7-106(C),
which prescribes standards of professional conduct for
participation in judicial proceedings, as follows:
(C) In appearing in his professional capacity before a
tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no
reasonable basis to believe is relevant to the
case or that will not be supported by admissible
evidence.
(2) Ask any question that he has no reasonable
basis to believe is relevant to the case and that
is intended to degrade a witness or other
person.
(3) Assert his personal knowledge of the facts in
issue, except when testifying as a witness.
(4) Assert his personal opinion as to the justness of
a cause, as to the credibility of a witness, as to
the culpability of a civil litigant, or as to the
47
guilt or innocence of an accused; but he may
argue, on his analysis of the evidence, for any
position or conclusion with respect to the
matters stated herein.
(5) Fail to comply with known local customs of
courtesy or practice of the bar or a particular
tribunal without giving to opposing counsel
timely notice of his intent not to comply.
(6) Engage in undignified or discourteous conduct
which is degrading to a tribunal.
(7) Intentionally or habitually violate any estab-
lished rule of procedure or of evidence.
In view of the gravity of Schulman’s conduct and his
fundamental lack of concern for the minimum requisite
standards of professional deportment, the Court concludes
that it would be remiss in its obligations to the Bar and to
the public if it countenanced such professional misbehavior
on the part of a member of its Bar without censure. To the
extent that Schulman’s conduct during this trial is
attributable to his demonstrated lack of knowledge of the
requirements of the Federal Rules of Civil Procedure, the
Federal Rules of Evidence, the Local Rules of the United
States District Court for the Northern District of Ohio, and
the rules and Orders of this Court, the Court is desirous of
affording to Schulman an opportunity to educate himself
with the standards of professional deportment and
competence requisite to membership in the Bar of the
United States District Court for the Northern District of
Ohio.
Accordingly, it is hereby ORDERED that Milton Phillip
Schulman is suspended from practicing law and/or
appearing before the United States District Court for the
Northern District of Ohio for a period of not less than two
48
(2) years from the date of this Order, and thereafter until
such time as he has:
1. satisfactorily demonstrated to this Court a profic-
iency and understanding of the Fed. R. Civ. P., Fed.
R. Evid., L. Civ. R. for Northern District of Ohio, the
rules and Orders of this Court and the Ethical
Consideration of the American Bar Association
Code of Professional Responsibility;
2. satisfactorily demonstrated an abiding commitment
to conduct himself in a manner commensurate with
the Ethical Consideration of the American Bar
Association of Professional Responsibility;
3. presented to this Court certification that he has,
after the date of this Order, satisfactorily completed
a course of study conducted by an accredited law
school in the following subjects! :
(a) Evidence — minimum three (3) hours
(b) Federal Rules of Evidence — minimum four (4)
hours
(c) Federal Practice and Procedure, including Fed.
R. Civ. P. — six (6) hours
1 Academic requirements conform with minimum uniform standards of
competency for admission of attorneys to practice in federal trial courts
as recommended by the American Bar Association for adoption by the
Judicial Conference of the United States (minimum credit hours imposed
by Court). Accredited qualifying courses of study are available at both
Case Western Reserve University School of Law (CWR) and Cleveland
State University School of Law (CSU), i.e. CWR academic offerings (a)
Evidence — 3 hours, (b) Evidence for Litigators — 4 hours, (c) Civil
Procedure 1 — 3 hours, (d) Civil Procedure 2 — 3 hours, (e) Criminal
Law and Procedure — 3 hours, (f) Trial Advocacy — 4 hours, (g) Pro-
fessional Responsibility — 2 hours.
49
(d) Criminal Law and Procedure, including Fed. R.
Crim. P. — minimum three (3) hours
(e) Trial Advocacy — minimum four (4) hours
(f) Professional Responsibility — minimum two (2)
hours
(g) actual attendance and participation, as certi-
fied by a member of the Bar of the United States
District Court for the Northern District of Ohio.
in four experiences of some combination of
contested testimonial trials in a federal court of
record under the supervision of an experienced
trial lawyer admitted to practice before a
federal trial court.
IT IS SO ORDERED.
(signed) Robert B. Krupansky
United States District Judge
~~
50
Exhibit “A”
THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Filed September 24, 1976
In Re: )
COURTROOM PROCEDURE ) ORDER
ORDER NO. 9-24-76
KRUPANSKY, J.
The rules and procedures delineated in this Order are
intended to familiarize counsel with the procedures to be
implemented in the trial of actions before this Court. This
Order is designed to aid and assist counsel in preparation
and orderly presentation of cases to the Court.
Preparation is the keystone for obtaining justice.
Courts and the Bar are charged with the duty to efficiently
utilize the time and effort of juries, witnesses, and the
parties, and to effectively advance the administration of
justice through trial practices that afford a clear exposition
of facts and issues. These procedures are designed to
accomplish this result by expediting the orderly administra-
tion of justice without impeding, in any way, counsel's
ability as an advocate to fully and fairly represent the
client's interest.
COUNSEL SHALL AT ALL TIMES CONFORM TO AND
DISPLAY THE HIGHEST DEGREE OF PROFESSIONAL
CONDUCT BEFORE THE JURY AND THE COURT DURING
THE COURSE OF ANY TRIAL OR PROCEEDING. ALL
51
TRIALS AND PROCEEDINGS BEFORE THE COURT SHALL
BE IN ACCORDANCE WITH THE FEDERAL RULES OF
EVIDENCE (FED. R. EVID.).
OPENING STATEMENTS
Opening statements of counsel shall be limited to a
brief summary of the proof anticipated by the respective
parties.
A. Opening statements shall be confined to the time
period allotted by the Court; and
B. Counsel shall not, during Opening Statements,
indulge in expositions of the law or in matters of
argument or statements more appropriately
reserved for closing argument:
INTERROGATION OF WITNESSES
Counsel shall at all times address the jury and the
Court from a standing position.
Counsel shall conduct all interrogation of witnesses
and/or arguments to the Court from the lectern positioned
in the courtroom. Counsel shall not leave the lectern during
the interrogation of any witness for any purpose without
express permission from the Court.
A. Counsel shall inform the Court Attache of the name
of the witness to be summoned from the witness
room.
1. The Court Attache shall summdn the witness;
2. The Court Attache shall administer the oath to
the witness.
B. COUNSEL SHALL NOT ENGAGE IN DIALOGUE. OR
52
ARGUMENT WITH THE COURT, OPPOSING
COUNSEL OR A WITNESS AT ANY TIME IN THE
PRESENCE OF THE JURY.
C. Counsel shall extend every courtesy to all witnesses
D.
appearing before the Court.
Counsel shall conduct interrogation of witnesses by
directing a series of simple, precise, probative and
proper questions to the witness.
1. Multiple questions shall not be incorporated into
a single question;
2. Questions directed to witnesses shall not be
characterized by inclusion of conclusory and/or
argumentative statements; :
3. Protracted statements directed to witnesses in
lieu of questions shall not be permitted;
4. Questions designed to confuse a witness shall not
be permitted;
5. Repetitious questions shall not be permitted;
6. Counsel shall avoid questions incorporating
suggestions and/or insinuations;
7. Counsel shall not by any action, expression, or
inflection indicate disbelief or other emotional
display as a result of an answer articulated by a
witness;
8. Counsel shall avoid theatrics and emotional
displays of any kind.
. Opposing counsel shall permit interrogating counsel
to complete the question directed to the witness
before interposing an objection, if any:
1. Tu interpose an objection to any question,
counsel will rise and simply state “‘objection”’;
ss 54
(a) Counsel shall not proffer any reason or K. Interrogating counsel shall indicate to the Court the
explanation for the objection,
(b) Counsel may explain or support any objec-
tion on the record by requesting permission
of the Court to ‘“‘approach the bench”,
completion of the examination of any witness. The
Court will thereupon advise opposing counsel to
proceed.
(c) The Court's ruling upon any objection is final
and counsel shall not persist in further argu-
ment thereon but shall forthwith proceed
with the interrogation by directing another
question to the witness.
F. Interrogating counsel shall not interrupt the
answer articulated by a witness:
1. In the event that an answer is not responsive,
the Court may, upon objection or sua sponte,
order the witness to respond;
2. Interrogating counsel may request permission to
‘approach the bench” for the purpose of placing
an objection upon the record and to request the
Court to order the witness to properly respond.
G. Counsel shall be fully prepared and organized to
interrogate each witness called; unnecessary
delays prompted by paper shuffling or other
reasons will not be permitted.
H. Counsel shall not place brief cases, models,
exhibits or other articles which may deface the
furniture on counsel table.
I. Smoking, beverages, or food of any description
shall not be permitted in the courtroom or any part
thereof.
J. Counsel may at any time request permission to
“approach the bench"’, for any purpose whatsoever.
55
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: )
MILTON SCHULMAN ) NOTICE OF HEARING
) AND ORDER
TRANSCRIPT OF PROCEEDINGS HAD BEFORE
THE HON. ROBERT B. KRUPANSKY, JUDGE OF
SAID COURT, ON WEDNESDAY, DECEMBER 20,
1978, AT 1:45 O'CLOCK P.M.
PRESENT:
Mr. Milt Schulman
748 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
Mr. Avery S. Friedman
Mr. David L. Hoehnen
706 Citizens Building
Cleveland, Ohio 44114
Mr. Donald J. Kindt
United States Marshal
323 U.S. Court House
Cleveland, Ohio 44114
WEDNESDAY, DECEMBER 20, 1978, 1:45 P.M.
THE COURT: Gentlemen, — I should say
Mr. Schulman, the Court has considered additional matters
concerning this case and they relate to your conduct during
the course of the entire proceeding.
I have scheduled this hearing this afternoon while the
case is still in progress to afford you, while everything is
56
fresh in your mind, the opportunity of conveying to this
Court why it should not order your name to be stricken from
the rolls of attorneys authorized to appear before and
engage in the practice of law in the United States District
Court for the Northern District of Ohio. The action is
predicated upon your conduct as demonstrated by the
proceedings before this jury, this Court, the parties,
opposing counsel, and all of those individuals, members of
the public, who appeared here during the course of this
trial.
Sir, you are free to proceed and in whatever manner
you are desirous at this hearing.
MR. SCHULMAN: May I?
(Thereupon Mr. Kindt, United States Marshal, handed
a certified copy of the Court's Notice of Hearing and Order
to Mr. Schulman.)
MR. SCHULMAN: Your Honor, at 12:35
approximately, after the jury — after the Court had sent the
jury in to chambers, I was presented with this Notice of the
Hearing and an Order.
Every statement made by the Court in this Order is not
true. There is no question that this Court has not only
abused me during this trial, but it goes back to April of 1978
when I appeared before this — in the chambers — in the
office of this Court and requested an opportunity to speak to
this Judge; and I was interrogated by a law clerk who
wanted to know what the purpose of my conversation was
with this Judge.
I told the law clerk that I wanted to discuss with the
Judge the possibility of him setting up a hearing in which he
might consider, in the presence of the City of Cleveland,
57
which was a party of the action against CEI, which this
Court was — had under his jurisdiction, and the presence
of the attorneys for CEI, to discuss a possibility of an
assignment of the judgment liens in the amount of $18
million to me and my principals.
This Court evidently has trained these two gentlemen
to be contemptible and contemptuous of other people who
come into the Court — into the office to talk to the Judge;
and he proceeded to ask me what I was doing and what it
was all about.
I told him I came to see the Judge; if he wanted to speak
to me, he would call me, please have him call me. And this
gentleman said to me, ‘““Why, you don’t show deference to
the Court.”
And I told him, I says, ‘My friend, I show respect to all
judges. I show deference to no one.”
Now, I say3, “Will you please ask the Court if he will
call me to set up an appointment?”
There was nothing ex parte about my appearance in
that courtroom. It was in the interests of helping the City of
Cleveland to get over a great difficulty that was presented
to it by the Court by reason of his unjudicial ruling.
Now, after I left, this Court didn’t call me, and this
Court didn’t give me — afford me an opportunity to discuss
my appearance there, or why | appeared there, or what |
was doing there. But he immediately called counsel for the
City of Cleveland and proceeded to dress him out and said
that, ‘‘I don’t want Schulman around here, Milt Schulman,”’
not the attorney — the Law Director, and then proceeded to
call in a court reporter and make a record on the
statements made by his contemptible law clerks — which
i
58
were untrue — about my appearance there; and had that
transcript — had that Order written up and transcribed
and put under seal and filed in that case.
I didn’t learn about that until just about the time I
started to represent the Kinzels.
THE COURT: Well then, the lawyer for the
City misrepresented to the Court; because, at that time, he
advised the Court that he had taken the matter up with your
sons and had assured the Court that nothing further would
occur.
MR. SCHULMAN: Nobody took any matter up
with me. I'm the gentleman that’s involved here, not my son,
not the lawyer, not anybody else.
THE COURT:
MR. SCHULMAN:
with my defense —
THE COURT:
please, Mr. Schulman.
MR. SCHULMAN:
Mr. Schulman, —
Now, I want to continue on
— keep your voice down,
Well, I want to continue on
THE COURT:
MR. SCHULMAN: — with my defense of this
phony Order that you have written.
THE COURT: Very well.
Proceed.
MR. SCHULMAN: When I learned that that
event happened and that this Court didn't even give me the
courtesy to call me to ask me whether his law clerks were
telling the truth or not, — and I was representing the
Kinzels, — and after I had a hearing in this court, —
Stop shouting.
59
THE COURT: Are you saying you were repre-
senting the Kinzels way back in March?
MR. SCHULMAN: No; I didn’t hear about this
until —
THE COURT: All right.
MR. SCHULMAN: And that didn’t come to me
through my son or Mr. Norris.
THE COURT: Proceed.
MR. SCHULMAN: I have sources of
information around the whole country.
THE COURT: Proceed. I'm sure you do.
MR. SCHULMAN: Now, when I heard that,
— and, at that time, I was representing the Kinzels, and I
appeared before this Court, I think, on a motion. I decided
then that I better talk to the Court and see whether, on the
basis of what he did, — which I consider unjudicial and
wrong and discriminatory and biased — I called you, the
Court, and I asked you, I says, ‘““Tell me something: I heard
that this happened. Did it happen?”’
And you told me, “Yes, we did that.”
I says, “Can you tell me whether you can rule
judiciously in this case on the basis of the fact that you did
not inform me or call me —”’ this is no joke, your Honor, —
THE COURT: Mr. Schulman, as I recollect, |
disengaged that conversation and said nothing to you.
MR. SCHULMAN: You hung up on me in the
midst of that conversation.
THE COURT:
found out —
MR. SCHULMAN:
At the beginning of it, when |
No, not at the beginning,
Pedr, iit
THE COURT:
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
continue.
THE COURT:
Proceed.
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
THE COURT:
MR. SCHULMAN:
THE COURT:
impediment, sir.
- MR. SCHULMAN:
speak, period, and everybody knows that. I don't whisper; I
have no secrets.
THE COURT:
MR. SCHULMAN:
60
Stop hollering.
— at the end.
Please stop shouting.
Now, I want to continue —
Stop shouting, please.
— an opportunity to
Very well.
All right.
Don’t get emotional.
All right.
Just relax.
I’m not emotional.
Stop shouting.
This is the way I speak,
your Honor. You've told me to stop shouting for seven or
eight days. I speak this way.
Mr. Schulman, we have a
courtroom full of people here.
Well, if you want me to, I'll
go in the back of the room if it bothers you.
Keep your voice down, please.
All right.
I don't have a_ hearing
Well, I — this is the way I
Please, let's proceed.
Now, I called you, and you
61
hung up on me, and then you had your — Mr. Kennedy call
me and say, “Look, Mr. Schulman, file an affidavit of
prejudice.”
And I thought: Well, maybe we had a Judge that might
be showing a little judicial temperament and maybe if his
clerk told me that you told him to have me file an affidavit of
prejudice, that you would then withdraw from the case and
give my client a proper forum.
But that didn’t happen. I filed the affidavit of prejudice
at the request of your law clerk; and all of a sudden you
came through with a ruling that you denied the affidavit of
prejudice. So we came to trial.
Now, I have been practicing law in this state for a long
time, and I have been practicing law in the Federal Courts
of this district, including the Court of Appeals in Cincinnati.
~ Now, in answer to your Notice of Hearing and Order.
Throughout the prosecution of Civil Action No.
C78-1169, styled Barbara Ford v. Ken Kinzel, I did not
knowingly and intentionally comport myself in an
unprofessional manner designed and calculated to
frustrate, deley, and demean the orderly process of justice
and administration of the Court, in deliberate disregard of
the requirements of the Federal Rules of Civil Procedure,
the Federal Rules of Evidence, the Local Civil Rules of the
United States District Court for the Northern District of
Ohio, and the specific rules and Orders of this Court; and
did not, despite any repeated requests, admonitions, and
Orders of the Court, persist in an irresponsible course of
conduct which obstructed, delayed, and demeaned the due
administration of justice and orderly conduct of this Court's
business.
Se
62
In no instance did I do any of the foregoing. But this
Court — this Court, by his erroneous rulings, in error of the
laws of the state, denied my clients due process; denied me
the opportunity of presenting evidence that was relevant to
this case and would support him.
This Court is the one that frustrated and delayed and
demeaned and denied my clients from due justice. It’s this
Court that’s guilty, and it's this Court that should be
removed from the bench for his activity and actions in this
case, which I will prove by the record. At no time did I
violate any rule or any order — or any responsible order of
this Court. This Court deliberately suppressed and
obfuscated the evidence that we felt was necessary to
present on behalf of my clients. And in spite of that, I can
guarantee you: This jury is coming in with a decision in
favor of my clients in spite of your activities.
Now, it’s high time that this Court start to recognize
that people have a right to a trial; they have a right to due
process, and they have a right to have a judicial determina-
tion and have all the evidence that is necessary to
prosecute their case presented to the jury.
Now, I'm going to ask for a formal hearing on this. I'm
also going to order a record of this case; and only through
the record will we be able to determine who was the
gentleman that’s guilty of defeating the process of justice in
this case.
THE COURT: Is there anything further you
would like to say, Mr. Schulman?
MR. SCHULMAN: I have a lot of things to say,
THE COURT: You're free —
#".
63
MR. SCHULMAN: — but I have not been —
THE COURT: You're free to say whatever you
MR. SCHULMAN: Well, I am; but I can defer
till we have a formal hearing.
THE COURT: Well, the Court will proceed on
the record as recorded during the entire course of this trial.
There is no necessity for rehashing the record and what
transpired therein.
The record will speak for itself. And this will be the
opportunity that you are being given to say whatever you
are desirous of saying, doing whatever you're desirous of —
MR. SCHULMAN: This is no opportunity. |
demand a hearing —
THE COURT: You're getting it.
MR. SCHULMAN: — and I — I'm not getting
it. This is no hearing.
THE COURT: Anything further?
MR. SCHULMAN: This is an ex parte — what
the hell do you call it —
THE COURT: Please, let's refrain from
profanity.
MR. SCHULMAN: Well, there's an old saying
by this judge out west, he says, ‘Let's go into the trial, let's
get on with the hanging,”’ you know.
THE COURT: Anything further?
MR. SCHULMAN: At the present time, no,
your Honor; but I do demand a proper hearing.
THE COURT: You're getting a hearing.
MR. SCHULMAN: No, I'm not getting a
hearing, and you know it.
64
THE COURT: Please don't shout, Mr.
Schulman.
MR. SCHULMAN: Well, I'm telling you, I'm
not getting a hearing, and you know it.
THE COURT: The matters are fresh in your
mind, the Court stands on the record, and we will decide
the case on the record.
If there is nothing further, —
MR. SCHULMAN: Let's get the record and —
I want that record written up —
THE COURT: If there's nothing further to say,
MR. SCHULMAN: — before any — before
any hearing or any ruling is made by you; and 1 —
THE COURT: If there is —
MR. SCHULMAN: — and I demand that.
THE COURT: If there is nothing further, Mr.
Schulman, we will recess this hearing until — I will recess
the trial until such time as the jury has a verdict, to
determine whether or not the jury had arrived at a verdict.
Everything that transpired in this case is a matter of
record, —
MR. SCHULMAN: That's right.
THE COURT: — including this Court's ruling
as to your affidavit of prejudice; and the Court will stand on
the record, and you may stand on the record.
MR. SCHULMAN: And including this Court's
behavior in this case.
THE COURT: Thank you, Mr. Schulman.
65
CERTIFICATE
I, Nicholas M. Czompoly, Official Court Reporter in and
for the District Court of the United States for the Northern
District of Ohio, Eastern Division, do hereby certify that the
above and foregoing is a true and correct transcript of the
proceecings herein.
__(signed) Nicholas M. Czompoly
Official Court Reporter
es ee LE
_ ~— —s
66
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BARBARA FORD, )
Plaintiff, )
vs. ) Civil Action
KEN KINZEL, et al., ) No. C 78-1169
Defendants. ) Judge Robert B. Krupansky
TRANSCRIPT OF EXCERPTS OF PROCEEDINGS HAD
BEFORE THE HONORABLE ROBERT B. KRUPANSKY,
JUDGE OF SAID COURT, AND A JURY, ON
THURSDAY, DECEMBER 14, 1978.
APPEARANCES:
On behalf of the Plaintiff:
Mr. Avery S. Friedman
Mr. David L. Hoehnen
706 Citizens Building
Cleveland, Ohio 44114
On behalf of the Defendants:
Mr. Milt Schulman
748 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
MR. FRIEDMAN: Your Honor, at this time
the Plaintiff, subject to consideration of exhibits which we
have proferred, rests.
67
THE COURT: Very well.
Approach the bench, gentlemen.
(Thereupon the following proceedings were had at the
bench out of the hearing of the jury.)
THE COURT: Mr. Schulman?
MR. SCHULMAN: I move for directed verdict.
THE COURT: Would you like to state the
reason, please?
MR. SCHULMAN: There is no evidence that
at any time — do you want the jury to leave?
THE COURT: No. Go ahead.
MR. SCHULMAN: There was no evidence at
any time that the Plaintiff in this case was refused an
opportunity to rent.
There is no evidence at this time that the property was
on the market available to anyone.
There is no evidence that any deposits were made.
The only evidence in this case is that an ad was placed
in the paper seeking prospective tenants for a place that
was going to be — possibly going to be vacant and then put
on the market. That's the evidence. And on that basis it was
not on the open market for listing. It was an advertisement
saying, ‘‘If you like the house, come look at it. And if you're
interested in it, we'll talk about it."
That's the testimony.
Mrs. Ford testified that she looked at the house. There
is no evidence by her or Mrs. Janes that there was an offer
to take it or a refusal.
Now, if the Court is talking about inflections and
innuendoes, it was a figment of her imagination Mrs. Kinzel
told‘her when she said — and the testimony was that Mrs.
ee ee
68
Kinzel just says, ‘Look at it. If you like it, we'll talk to you.”’
THE COURT: Very well.
MR. SCHULMAN: That's it.
THE COURT: Are you desirous of
responding?
MR. FRIEDMAN: Very briefly, your Honor.
The substantive elements, the basic elements in establishing
a prima-facie case have been established by the evidence.
First of all, that the house was placed on the market.
Secondly, that the Plaintiff was attempting to secure
housing; in fact, made no less than three separate efforts
directly with the Defendant to put down a deposit,
otherwise seek to rent the property. That representations
were made to the Plaintiff, who was black, that such
opportunities were unavailable. That representations
through the independent, testimony of witnesses who had
direct contact, — unrebutted by the Defendant — were told
that such housing was available. And, specifically one
individual, Bernice McGovern, was specifically offered the
opportunity to rent the premises for $400 a month, and $400
to hold the premises.
Construing the evidence most favorably to the Plaintiff,
who is opposing the motion, we believe the motion for
directed verdict should be denied at this point.
THE COURT: Geutlemen, both of your
statements are generalizations. |
At this point in time there remains before the Court two
issues: Namely, discrimination arising as a result of Title
42, Section 1981, and Title 42, Section 1982.
Considering each independent of the other. at this
point in time, construing the evidence most favorably to the
69
Plaintiff, the motion as to both is overruled.
However, the Court does recognize at this time that as
to as least 42 U.S.C. 1982, the evidence is tenuous in the
sense that there is testimony that the premises were not
available at this time. It is contradicted.
However, if it should develop through further evidence
— and it appears to me that somebody is going to offer a
lease which would indicate a tenancy between April, '78 to
April, '79 — if it should develop during the course of the
Defendants’ case that the premises in fact were not
available, and would not be available either to white
persons or to black persons, there could be no discrimina-
tion under 1982.
As to Title 42, Section 1981, which is broad in its terms,
there could remain a violation which the Court must
determine. The evidence, at least in this point of time, there
is testimony that this lady was treated differently from
white persons as relates to the security deposit, at least
testified to by Mrs. McGovern.
Should that remain a controversial point, the case may
very well go to the jury on that single issue. But I must await
the development of the evidence.
I think that I have adequately defined the Court's
position and, at this time, Mr. Schulman, your motion as to
both issues, the one under Title 42, 1981 is overruled, as
well as 1982, subject to the renewal of the motion at the
appropriate time.
Ba See 6 here
/
4
‘
5
|
70
CERTIFICATE
I, Nicholas M. Czompoly, Official Court Reporter in and
for the United States Disirict Court for the Northern District
of Ohio, Eastern Division, do hereby certify that the above
and foregoing is a true and correct transcript of the
proceedings herein.
(signed) Nicholas M. Czompoly
Official Court Reporter
CROSS-EXAMINATION OF BERNICE McGOVERN
By Mr. Schulman:
* *
* * * * *
Q And didn’t Mr. Friedman question each one of you
witnesses in a manner in which Mr. Schulman would
question you on the stand when you got on the stand?
MR. FRIEDMAN: Objection.
THE COURT: Overruled.
A Yes.
Q And after you gave the answer that was supposed to be
the question by Mr. Schulman, weren't you teld to
correct it a little bit so that the testimony would come out
a little better in favor of —
A No.
Q No, huh?
A No; we were told to tell the truth.
Q Naturally you're told to tell the truth.
THE COURT: Sustain the objection.
The jury will disregard that remark.
Approach the bench.
71
(The following proceedings were had at the bench
out of the hearing of the jury.)
THE COURT: Mr. Schulman, is there
any reason why | shouldn't hold you in contempt?
MR. SCHULMAN: Certainly. I did nothing
contemptuous.
THE COURT: Very well.
The Court finds you in contempt of court.
You are fined $250.00.
Please proceed back to your seat.
—
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nic hed ee SREP! > BPS ee
PN Pee
72
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BARBARA FORD, )
Plaintiff, ) Civil Action
vs. ) No. C 78-1169
KEN KINZEL, et al. ) Judge Robert B. Krupansky
Defendants.
TRANSCRIPT OF EXCERPTS OF PROCEEDINGS HAD
BEFORE THE HON. ROBERT B. KRUPANSKY, JUDGE
OF SAID COURT, AND A JURY, ON FRIDAY,
DECEMBER 15, 1978.
APPEARANCES:
On behalf of the Plaintiff:
Mr. Avery S. Friedman
Mr. David L. Hoehnen
706 Citizens Building
Cleveland, Ohio 44114
On behalf of the Defendants:
Mr. Milt Schulman
748 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
FRIDAY, DECEMBER 15, 1978, 9:10 O'CLOCK A.M.
* * * * * * *
VIRGINIA L. DAVIS,
of lawful age, called as a witness on behalf of the
defendants, being first duly sworn, was examined and
testified as follows:
73
DIRECT EXAMINATION OF VIRGINIA L. DAVIS
By Mr. Schulman:
* * . * * * *
Q Mrs. Davis, did you discuss and make any arrangements
to rent the place to Mrs. Ford the first time you spoke to
her?
A Yes.
Q Did you discuss the conditions of renting it to her?.
A I don’t understand ‘‘the conditions’, what you mean by
‘the conditions’’?
THE COURT: Gentlemen, approach
the bench.
(Thereupon the following proceedings were had at
the bench out of the hearing of the jury.)
THE COURT: Mr. Schulman, so far,
none of this testimony is proper.
MR. SCHULMAN: Your Honor, there is a
lease here. I want to talk about whether there is a
lease or a month-to-month rental; that is a term of
condition.
THE COURT: I’m telling you, Mr.
Schulman, at this point in time, the testimony thus far
elicited is improper unless you lay a proper foundation,
and I’m not going to permit you to proceed.
MR. SCHULMAN: Well, asking about the
terms and conditions would be either a monthly or a —
lease, a monthly rental or a lease.
THE COURT: I’m not precluding you
trom the examination, —
74
MR. SCHULMAN: Well, that’s exactly
what you're doing.
THE COURT: Would you kindly stop
interrupting me?
Kindly stop interrupting me, Mr. Schulman. I’m
not going to preclude you from proper examination,
providing you lay a proper foundation. All I’m saying to
you, sir, is you have failed to do so.
Now, shall we proceed?
MR. SCHULMAN: Yes. I didn’t do
anything but disagree with you.
THE COURT: Very well. Your dis-
agreement is noted.
Shall we proceed?
MR. SCHULMAN: Right.
(The foregoing proceedings were had out of the
hearing of the jury.)
JUROR NO. 7: May I have my coat?
THE COURT: Absolutely. Are you
chilly?
JUROR NO. 7: Yes, I am.
THE COURT: Well, Mr. Schuck, will
you kindly call the GSA and see if we can get some
response?
You know, that’s a problem, but we will certainly
try, and, Mr. Kennedy, you go — why don’t you go and
get it (addressing Juror No. 7).
JUROR NO. 7: Thank you.
THE COURT: And we'll suspend our
hearing here just temporarily until you get it.
75
(Thereupon Juror No. 7 steps into the jury room to
get her coat.)
THE COURT: We have an ideal system
here: It’s either too hot or too cold.
(Thereupon Juror No. 7 returns to the courtroom.)
JUROR NO. 7: Thank you.
THE COURT: Fine.
You may proceed, Mr. Schulman.
By Mr. Schulman: |
Q Mrs. Davis, was your rental agreement with her on a
monthly basis or on the basis of a lease?
THE COURT: Sustain the objection,
Mr. Schulman.
I have told you that you must lay a proper founda-
tion before you can proceed with this questioning.
Q Are you the owner of that property?
A Yes.
MR. SCHULMAN: May I have Exhibit J?
Mr. Kennedy, will vou hand that to the young
lady?
THE COURT: Mr. Schulman, —
gentlemen, approach the bench.
(Thereupon the following proceedings were had at
the bench out of the hearing of the jury.)
THE COURT: Mr. Schulman, I have
told you that before you can proceed with this line of
questioning, you must lay a proper foundation. I don't
know what more I can tell you.
MR. SCHULMAN: I don’t know what you
want. I haven’t the least idea what you want.
aSicias <<
nits b«* apni wi
76
THE COURT: Lay a proper foundation.
She’s the landlady, Mr. Schulman. I’m not here to
instruct you on how you have to proffer it or what the
rules of evidence are.
MR. SCHULMAN: I understand the rules of
evidence. I don’t know what you're asking for.
THE COURT: I'm asking for you to lay
a proper foundation.
MR. SCHULMAN: What would be proper?
THE COURT: -Go back there, please.
I’m not going to tell you how to try your case. If you’re
so inexperienced that you don’t know, —
MR. SCHULMAN: I have had 18 years of
experience, and I do know.
THE COURT: Then you shouldn't be
practicing here. Now, please don’t argue with me. Go
back there and lay a proper foundation or sit down.
(The foregoing proceedings were had at the bench
out of the hearing of the jury.)
By Mr. Schulman:
Q Mrs. Davis, —
(Thereupon the Court and the law clerk conferred
off the record. }
THE COURT: You may proceed, Mr.
Schulman. Just lay a proper foundation and then you
may proceed with this line of questioning.
Now, if you want to go into another line of ques-
tioning that doesn’t require a foundation, you're free to
do that.
By Mr. Schulman:
Q Miss Davis, did Mrs. Ford move into the house?
77
THE COURT: Sustain the objection.
Q Did there come a time when Mrs. Ford moved into the
house with her family?
THE COURT: Sustain the objection.
Q Could you tell the Court whether a lease agreement was
entered into between you and Mrs. Ford?
THE COURT: Sustain the objection.
MR. SCHULMAN: I'm going to ask for a
mistrial.
THE COURT: Approach the bench,
gentlemen.
(Thereupon respective counsel approached the
bench.)
THE COURT: Ladies and gentlemen of
the jury, supposing we take a short recess. Please,
during the recess, do not discuss the case either among
yourselves or with anyone else; keep an open mind
until such time as you've heard all of the evidence and
the matter has been submitted to you for your final
deliberation and judgment.
You're free to return to the jury room.
(Thereupon the jury commences to leave the
courtroom.)
THE COURT: Mr. — wait till the jury
goes.
You may go back to your seats.
(Thereupon respective counsel returned to their
counsel tables.)
THE COURT: Now, Mr. Schulman, is
there any reason why the Court should not hold you in
contempt for your very unprofessional conduct, your
Sle wae eae ee DE ee CL i oe A LE ee at we aS oe
78
highly prejudicial remark in the presence of the jury,
and your completely unprofessional conduct here this
morning?
Is there, sir?
MR. SCHULMAN: I disagree with you.
THE COURT: Very well.
MR. SCHULMAN: I’m very professional, —
THE COURT: Please, —
MR. SCHULMAN: — my conduct is not
unprofessional.
You asked me; I’m answering you.
THE COURT: All right, sir.
The Court finds you in contempt and assesses a
fine of $500.
Now, Mr. Schulman, I have attempted to tell you
that you may pursue this line of questioning providing
that you make it relevant to this case. I don't know
what more I can say to you, sir. If you are inexperi-
enced or do not know how to do it, sir, I don’t believe
that it is the province of the Court to instruct you.
So that you may have some idea as to where you
may go:
This testimony is completely irrelevant, sir, until
such time as you establish that Mrs. Kinzel knew at the
time that the Fords or Mrs. Ford sought to negotiate
for the rental of these premises of these facts that you
are desirous of eliciting. Until such time, this testimony
is not material to this case.
Now, sir, if you can understand that, we may
proceed.
79
MR. SCHULMAN: May I be heard?
THE COURT: Yes, you may.
MR. SCHULMAN: I've got a complaint here
filed by Mrs. Ford, and | am attacking the allegations
in this complaint.
Now, because I don't take the procedure and the
context at the time that you would like to try the case,
or go into the facts, there are statements in this
complaint that | am trying to controvert and show not
true.
Now, I understand what you're saying about the
fact that Mrs. Kinzel knew; that's something else,
that’s something different. The question that I'm
attacking is the validity and the statements made in
this complaint. And I don't think that I should — that
this Court or any other court should tell me what facts |
should present in what sequence.
THE COURT: I'm not trying to do that.
MR. SCHULMAN: Well, that's what you're
deing.
THE COURT: Have you concluded,
sir?
MR. SCHULMAN: No, I haven't.
THE COURT: , . Allright.
MR. SCHULMAN: And, for that reason,
these questions I asked are proper and they're
competent, because I am attacking the complete
complaint, that's what I'm attacking.
Now, Mrs. Ford stated that she was ready, willing
and able to rent housing. I intend to prove she wasn't
ready, she wasn't willing, and she wasn't able,
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4, Pen
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:
80
through this witness and other witnesses.
Now, the fact that Mrs. Kinzel didn't know, that
has no significance right now.
I know what you're talking about.
THE COURT: All right.
MR. SCHULMAN:
law that you're talking about.
THE COURT: Very well, sir.
I have ruled, and you will proceed in those
parameters that I have established.
MR. SCHULMAN: Well, let the Court know
that I am attacking the statement, Paragraph 3 of the
complaint, through this witness.
THE COURT: It's not material to this
case unless —
MR. SCHULMAN:
| understand the point of
It's material because it's
THE COURT: Mr. Schulman,
please. We've exhausted it.
Now, please be seated, and you will be permitted
to proceed within the parameters established by the
Court.
Woule you kindly be seated, sir?
MR. SCHULMAN:
me —
THE COURT:
seated, sir?
MR. SCHULMAN: If you will please tell me
what parameters you've established, because I don't
know of any parameters yet.
Would you please tell
Would you kindly be
61
THE COURT: Mr. Schulman, would
you kindly be seated?
MR. SCHULMAN: Well, I request the Court
to tei! me what parameters you have made.
THE COURT: I have already told you,
sir.
Please be seated.
MR. SCHULMAN: You have never told me.
THE COURT: Call the jury back.
MR. SCHULMAN: Before the jury returns,
I have a motion for a mistrial.
THE COURT: Your motion is over-
ruled. Please be seated.
MR. SCHULMAN: Well, O.K. | would like
to have a ruling on that. |
THE COURT: Please be seated, sir.
(Thereupon the jury returned to the courtroom
and the following proceedings were had in their
hearing and presence.)
THE COURT: Ladies and gentlemen of
the jury, the jury will disregard the last statement of
counsel immediately before the recess and treat it as
though you had never heard it.
You may proceed, Mr. Schulman.
By Mr. Schulman:
Q Mrs. Davis, —
A Yes.
Q — would you tell the Court whether on September 7th,
there was an executed —
THE COURT: Sustain the objection.
Please do not lead the witness, Mr. Schulman.
haem ee es PN tlt
+ ee Pam were
os ey a eee ee ee
82
Q Was there on September 7th, 1978, a lease executed and
operable between you and Mr. and Mrs. Ford?
MR. FRIEDMAN: Objection.
THE COURT: Approach the bench.
(Thereupon respective counsel approached the
bench.)
THE COURT: Ladies and gentlemen
of the jury, kindly return to the jury room and don't
discuss the case until we have submitted it to you.
(Thereupon the jury left the courtroom, and the
following proceedings were had at the bench out of
their hearing and presence.)
THE COURT: I have no idea where
you're going with this kind of questioning, Mr.
Schulman. However, | will permit you, on voir dire
examination outside the presence of the jury, to try to
develop whatever you are desirous of developing and
we'll see whether or not it's material. But this demon-
stration is something that I don't believe I have ever
seen during my entire experience on the bench.
Please go back and you may proceed.
MR. SCHULMAN: What demonstration
are you talking about?
THE COURT: Mr. Schulman, —
MR. SCHULMAN: I don't understand. You
keep —
THE COURT: Would you kindly go
back there?
MR. SCHULMAN: If you would let me know
what you wanted, maybe | could accommodate you. |
don't know what you want?
83
THE COURT: I have told you; I want
you to conform to the rules of evidence.
MR. SCHULMAN: I am conforming to the
rules of evidence, —
THE COURT: All right.
MR. SCHULMAN: — and if you would tell
me where I am not complying with it, I'd like to know.
It appears to me that you have determined — that
you have determined what the issue is and what has to
be proven; and I don't agree with you.
THE COURT: Well, that’s your
privilege, Mr. Schulman.
MR. SCHULMAN: That's right. And I don't
want to be limited to your idea of what the law is.
THE COURT: I thought that was my
reason for being here, sir, to determine what the issues
are, —
MR. SCHULMAN:
evidence.
THE COURT: Let’s proceed, Mr.
Schulman, and please conform to the Court’s direction.
Please go back there and don't take issue with me.
MR. SCHULMAN: I'm not, your Honor. But
I'd like to know what you want; that’s all.
THE COURT: I have told you time and
again —
MR. SCHULMAN: I haven't heard a thing
yet.
THE COURT:
instead of talking —
Well, if you would listen
After you hear the
dais = a Sa ee ee
84
MR. SCHULMAN: I'm listening now. Would
you please tell me what you want?
THE COURT: I have told you, Mr.
Schulman, that you’re permitted to pursue this line of
questioning if you lay a proper foundation.
Now, I'm going to permit you to examine this lady
under a voir dire examination, and we'll see where
you're going and we'll see whether or not it’s material.
MR. SCHULMAN: O.K.
FRIDAY, DECEMBER 15, 1978, 1:30 O’CLOCK P.M.
* * . * * * * *
VIRGINIA L. DAVIS,
resumed the stand and testified further as
follows:
CROSS-EXAMINATION OF VIRGINIA L. DAVIS
(Resumed)
By Mr. Friedman:
* * * * * * *
Q The fact is, Mrs. Davis, that that furnace had been red
tagged earlier in 1978 as being defective, isn't that true?
MR. SCHULMAN: Object, your Honor.
THE COURT: Overruled.
Q Isn't that true?
A No, it’s not true.
85
Q But at one point it had been red tagged?
A No.
You'd have to explain what you are talking about —
what you mean by “red tagged"’.
Q It was shut off by the gas company because it was
defective?
A Never.
THE COURT: Ladies and gentlemen of
the jury, would you kindly step into the jury room for a
moment:
Please do not discuss the case either among
yourselves or with anyone else; keep an open mind
until such time as you have heard all the evidence and
I have directed you on the law and the matter is
submitted to you upon the instruction of the Court.
(Thereupon the jury leaves the courtroom and the
following proceedings were had out of their hearing
and presence.
THE COURT: Please be seated, Mr.
Schulman.
(Mr. Schulman complies.)
THE COURT: Would the gentleman in
the gray sweater come up here, please?
(The gentleman in the gray sweater complies.)
THE COURT: What is your name?.
MR. DAVIS: Mr. Davis.
THE COURT: Mr. who?
MR. DAVIS: Mr. Davis, D-a-v-i-s.
THE COURT: Yes.
MR. DAVIS: Virginia's husband.
That's my wife.
-
WD set tener Hod at
bof udneT
86
THE COURT: This is your wife?
MR. DAVIS: Yes.
THE COURT: I've noticed during the
course of her examination, Mr. Davis, and particularly
during the last question and the answer, preliminary
to the answer, that your wife was looking at you —
MR. DAVIS: Cause she didn't know
what “‘red tag"’ meant.
THE COURT: Well, just a minute.
would you kindly let me finish?
(Continuing) — and you were gesturing with your
head as to what the answer should be, isn't that
correct?
- MR. DAVIS: “Red tag’, she didn't
know what it meant.
THE COURT: No, no.
Isn't that correct?
MR. DAVIS: That is not correct.
THE COURT: Mr. Schuck, —
MR. DAVIS: ® It was “red tag"; she
didn't understand what ‘‘red tag’ meant. That wasn't
the truth.
THE COURT: Mr. Schuck, will you
describe for the record what this gentleman has been
doing throughout the examination of this witness —
MR. SCHUCK: Yes, your Honor.
THE COURT: — if you have been
observing him?
MR. SCHUCK: Several questions ago,
your Honor, Mr. Friedman placed a _ question
concerning the turning off of gas at this residence.
87
At that point, I observed this gentleman mouth — and
it was audible to me — the words ‘‘gas company".
Thereafter, he was observing the witness, who
answered the questions which were subsequently
placed to her.
THE COURT: I noticed it too, Mr.
Davis.
Is there any reason why I shouldn't hold you in
contempt?
MR. DAVIS: Whatever you feel, sir.
THE COURT: What's your purpose of
sitting back there and conveying answers to this
witness?
MR. DAVIS: Cause it happens to be
my wife, and I —
THE COURT: That's beside the point,
sir.
MR. DAVIS: Oh, I didn't know; |
didn't realize that.
THE COURT: I'm going to find you in
contempt, sir, and I'm going to fine you $250. And if it
happens one more time, I'm going to call the Marshal
down here and I'm going to take further sanctions.
Now, if you are desirous of going back there and
being a proper spectator, you're free to do that. Other-
wise, please leave this courtroom and this building.
Now do I make myself cleer?
MR. DAVIS: Very clear.
THE COURT: Go back there.
MR. DAVIS: Fine.
88
(Thereupon Mr. Davis returns to the back of the
courtroom.)
MR. SCHULMAN: I would like to approach
the bench.
THE COURT: I've never seen the likes
of this in any trial.
MR. SCHULMAN: May I approach the
bench?
THE COURT: Yes, you may.
MR. SCHULMAN: May we approach the
bench?
THE COURT: Yes, you may.
Mr. Davis, you have 24 hours within which to pay
that fine.
(Thereupon the following proceedings were had at
the bench out of the hearing of the jury.)
MR. SCHULMAN: You're Honor —
THE COURT: Yes.
MR. SCHULMAN: — let me say this:
THE COURT: Yes.
MR. SCHULMAN: I have watched Mr.
Friedman badger this witness for two hours.
THE COURT: Don't tell me that, now.
MR. SCHULMAN: I — this is my opinion,
| want it in the record.
THE COURT: Mr. Schulman, —
MR. SCHULMAN: And he has repeatedly
asked the same questions trying to get an answer out of
her that she is not going to tell him because it’s not the
truth.
89
THE COURT: Mr. Schuimen, Mr.
Friedman has not badgered this witness at all.
Mr. Friedman has conducted, within bounds, a
reasonable and proper cross-examination.
Please go and sit down.
MR. SCHULMAN: Well, I disagree.
THE COURT: Will you go and sit
down?
MR. SCHULMAN: May I continue my
statement?
THE COURT: Will you please go and
sit down?
MR. SCHULMAN: I will.
THE COURT: No, —
MR. SCHULMAN:
complete my statement?
THE COURT: No.
MR. SCHULMAN: All right.
THE COURT: Please go and sit down.
Mr. Davis, would you come back up here?
(Mr. Davis complies.)
I'm asking, may |
THE COURT: Have you had any con-
versation with Mr. Schulman before you came in here
today? |
MR. DAVIS: No. It's the first time |
met Mr. Schulman.
THE COURT: Have you ever had any
conversation with him?
MR. DAVIS: No, sir, I haven't.
MR. SCHULMAN: Today.
CS BS RAL RARER NE it tes
|
j
90
MR. DAVIS:
talked—
MR. SCHULMAN:
Today I came in and |
We had lunch.
MR. DAVIS: We had lunch together.
THE COURT: Did you discuss this
case?
MR. DAVIS: Sure | did.
THE COURT:
during the course of that lunch?
Who else was present
MR. DAVIS: My wife.
THE COURT: What was said?
MR. DAVIS: Just talking about the
general —
THE COURT: What was said, not
talking generally? I want to know what was said.
MR. DAVIS: Do you want to know
everything?
THE COURT: Yes.
MR. DAVIS: O.K. Since we —
THE COURT: All right, —
MR. SCHULMAN: Shall 1 or not?
We didn't discuss the case. We discussed
economics and the social conditions in this community.
There was no discussion about the merits of the case,
the issues of the case or the facts to be presented.
Is that right?
MR. DAVIS:
THE COURT: Very well. You may go.
I'll take your professional word for it, Mr.
Schulman.
That's correct.
91
MR. SCHULMAN: That's all the discussion
was: Was what the social problems were in this town,
and other problems.
1 THE COURT: All right.
THE WITNESS: Judge, could I have
something to say?
THE COURT: No, please.
Call the jury back, please.
NAOMI KINZEL,
one of the defendants herein, having been previously
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION OF NAOMI KINZEL
By Mr. Schulman:
* * + * o * *
Q Could you tell — did you tell any of the people when that
house would be available?
A The people that I talked to that were interested in the
house, I told them I didn't know when it would be
available.
Usually it's not that big a thing because people have
to give —
THE COURT: Sustain the objection.
I think you've answered the question.
Q Well, continue with your answer to the question.
THE COURT: Mr. Schulman, she’s not
going to continue. Please place another question.
sod athe tial
92
Q Explain the answer to the question.
THE COURT: Just a minute, now.
Read the last. question and the answer back,
please.
(The record was read by the reporter as follows:
“Q Could you tell — did you tell any of the people
when that house would be available?
“A’’ The people that I talked to that were inter-
ested in the house, I told them I didn't know when it
would be available.
“Usually it's not that big a thing because people
have to give —"’
THE REPORTER: And the Court sustained
the objection.
THE COURT: She's completed the
answer, Mr. Schulman, and it doesn't need any
explanation.
Now, please proceed.
THE WITNESS: I think —
THE COURT: just a minute, ma'am.
You have responded to your lawyer's question.
You are not permitted to ramble on.
THE WITNESS: All right.
THE COURT:
Mr. Schulman.
Place another question,
By Mr. Schulman:
Q Miss Kinzel, could you tell the Court and jury whether
anyone in particular expressed a greater interest than
others in the rental of that house?
A Yes. Mr. Kenneth Moss from Tampa.
93
Q ‘Vhat was your conversation with him?
MR. FRIEDMAN: Objection.
THE COURT: Sustained.
Q Could you tell the Court and the jury whether you came
into any decision as far as him being a tenant?
(Pause.)
Q (Continuing) In the event the house was availab!e?
A Yes. I toid him —
MR. FRIEDMAN: Objection.
THE COURT: Mr. Friedman, she may
answer,
Let's get on with this. Go ahead, tell us what you
said.
A He liked the house; | liked him; he was getting a
promotion, —
THE COURT: Would you kindly tell us
what you said to him, ma'am? Don't go away from the
question.
A All right. He was being transferred up here, his company
was offering him a promotion. He said he was very —
pleased with the house, —
THE COURT:
question back, please?
(Thereupon the last question was read by the
reporter as follows:)
“Q Could you tell the Court and the jury whether
you came into any decision as far as him being a
tenant?
‘*(Pause.)
“Q (Continuing) In the event the house was
availabie?"’)
Would you read the
94
THE COURT:
decision if the house was available, yes or no?
Did vou come to a
(Pause.)
THE COURT: Did you, yes or no,
ma'am?
THE WITNESS: I'm trying to tell you.
THE COURT: Mrs. Kinzel, —
MR. SCHULMAN:
approach the bench?
THE COURT:
here. Will you come here, please?
(The following proceedings were had at the bench
Your Honor, may |
Mr. Schulman, come
out of the hearing of the jury.)
MR. SCHULMAN:
question, your Honor.
She has answered the
THE COURT: Mr. Schulman, —
MR. SCHULMAN: What?
THE COURT: — please, let's not have
these outbursts. :
MR. SCHULMAN:
burst. This is a statement of fact, your Honor.
THE COURT: Will you stop making
these statements in the presence of the jury, Mr.
Schulman?
MR. SCHULMAN:
to leave.
THE COURT: Mr. Schulman, is there
any reason why I shouldn't hold you in contempt for
Well, this is not an out-
Well then, ask the jury
these outbursts?
MR. SCHULMAN;
burst, your Honor, —
I'm not making an out-
95
THE COURT: Keep your voice down.
MR. SCHULMAN: —I'm—
THE COURT: Ladies and gentlemen of
the jury, would you kindly go back into the jury room?
(The jury commences to leave the courtroom.)
MR. SCHULMAN: I-
THE COURT: Just a minute.
(Thereupon the jury enters the jury room and the
door is closed behind them.)
THE COURT: Will you go back and sit
down?
MR. SCHULMAN: I—
THE COURT: Will you go back and sit
down?
MR. SCHULMAN: I'll go back and sit down.
THE COURT: All right.
(Mr. Schulman returns to counsel table and sits
down.)
THE COURT: Mr. Schulman, because
of your outbursts in front of the jury again, | have been
required to dismiss the jury and request them to go into
the jury room.
Now, your conduct, as | said before, is reprehen-
sible. You are making prejudicial statements in the
presence of this jury. Your theatrics, your expressions,
everything that you do is designed to create a prejudice.
You are constantly provoking witnesses and the Court.
As | have tried to explain to you on many occasions,
Mr. Schulman, when the Court rules, your exceptions
are noted. In the event that my rulings are improper or
incorrect, you have a right to appeal whatever the
96
decision in this case may be. But your conduct and
your actions and the improper ruling of this Court is no
excuse for that conduct.
Now, the Court has listened to the question, the
Court has ruled that this lady's response has been con-
cluded, that she would not be permitted to go beyond
the answer given. You insist upon taking issue with the
Court after the ruling; your client insists upon insisting
on answering when the Court has ruled.
I can understand the reaction of your client. Since
I am confident that she has not had experience in testi-
fying, her conduct is excusable. Your conduct is
inexcusable.
Now, is there any reason why I shouldn't hold you
in contempt —
MR. SCHULMAN: Yes.
THE COURT: — for this last outburst?
MR. SCHULMAN: Yes. Because you had
questioned her, and | want it read into the record —
THE COURT: Yes.
MR. SCHULMAN: — whether the building
was not available. She has already testified it was not
available, —
THE COURT: | Mr. Schulman, —
MR. SCHULMAN: — and you had taken it
upon yourself to cross-examine my client.
THE COURT: Mr. Schulman, is there
any reason why I should not hold you in contempt?
MR. SCHULMAN: Of course. Because |
wasn't contemptuous.
THE COURT: All right.
97
MR. SCHULMAN: You see, that's the
reason, —
THE COURT: The Court —
MR. SCHULMAN:
have expressed bias and prejudice against my client.
And I will not, on behalf of her, accept it without
making an expression of disagreement.
THE COURT: Mr. Schulman, —
MR. SCHULMAN: Now, my client is a fine
lady, and she has been cross-examined by you not only
this time but other times; and that's in excess of your
jurisdiction.
THE COURT: Mr. Schulman, I'm con-
fident the record will speak for itself.
Is there any reason why I should not hold you in
contempt for your conduct as a result of the last
outburst?
MR. SCHULMAN: Of course. The law:
That will show that you're wrong to held me in
contempt period.
THE COURT: Very well.
I find you in contempt, —
MR. SCHULMAN: All right.
THE COURT: — and | fine you an
additional $500.
MR. SCHULMAN: How many is that this
time?
THE COURT: Will you kindly be
seated?
MR. SCHULMAN: Am | to continue with my
witness?
— plus the fact that you ©
4 int pt nN lan Ne PSD ot Sa
98
THE COURT: You will be permitted.
Now, would you go back, Mr. Court Reporter, and
review for us what the last things that were said before
Mr. Schulman's outburst in the presence of the jury?
Go back to the initial question.
(Thereupon the record was read by the reporter
as follows:)
“Q_ Could you tell the Court and the jury whether
you came into any decision as far as him being a
tenant?
‘*(Pause.)
“Q (Continuing) In the event the house was
available?
“A Yes. I told him —
“Mr. Friedman: Objection.
The Court: Mr. Friedman, she may
answer.
“Let's get on with this. Ge ahead, tell us what you
said.
“A He liked the house; I liked him; he was getting
a promotion, —
“The Court: Would you kindly tell us
what you said to him, maam? Don't go away from the
question.
“A All right. He was being transferred up here,
his company was offering him a promotion. He said he
was very pleased with the house, —
“THE COURT:
question back, please?
“(Thereupon the last question was read by the
reporter as follows:)
Would you read the
99
“Q Could you tell the Court and the jury whether
you came into any decision as far as him being a
tenant?” :
“The Court: Did you come to a deci-
sion if the house was available, yes or no?"’)
MR. SCHULMAN: Whose question was
that?
THE REPORTER: That was the Court's.
MR. SCHULMAN: That's right.
(Pause.)
(“The Court: Did you, yes or no,
ma'am?
“The Witness: I'm trying to tell you.
“The Court: Mrs. Kinzel, —"’
THE REPORTER: Then is when Mr. Schul-
man broke in, and you said, “Mr. Schulman, come
here. Will you come here, please?”
THE COURT: Very well.
Let's call the jury back, and you may answer.
Do you understand that question, ma'am?
THE WITNESS: Did I —
THE COURT: Read the question back
to the witness.
(Thereupon the Court's question was read to the
witness.)
THE COURT: Do you understand the
question?
THE WITNESS: Yes.
THE COURT: Call the jury back to the
courtroom.
100
(Thereupon the jury returned to the courtroom
and the following proceedings were had in their
hearing and presence.)
THE COURT: ° Read the question back
to the witness.
MR. SCHULMAN: Will the Court take note
that it was the Court's question to the witness?
THE COURT: Yes, it may be so noted.
MR. SCHULMAN; I think it would be
proper for the jury to know the Court asked that
question.
THE COURT: Just a minute, Mr.
Schulman,
Would you kindly permit the Court Reporter to
read the question back?
(Thereupon the Court's question was read by the
reporter as follows:)
“Did you come to a decision if the house was
available, yes or no?"
THE COURT: The Court asked that
question, ladies and gentlemen of the jury, if you recall.
THE COURT: Do you understand the
question?
THE WITNESS: Yes.
THE COURT: You may answer, if you
know.
THE WITNESS: No; because I didn't
know.
THE COURT: You may proceed now,
Mr. Schulman.
101
By Mr. Schulman:
Q Will you tell the Court and jury whether you knew if it
would be available definitely?
A No, I didn't know.
CERTIFICATE
I, Nicholas M. Czompoly, Official Court Reporter in and
for the District Court of the United States for the Northern
District of Ohio, Eastern Division, do hereby certify that the
above and foregoing is a true and correct transcript of the
proceedings herein.
{signed( Nicholas M. Czompoly
Official Court Reporter
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.