Petition — In re Schulman

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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

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5

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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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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

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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.

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