Record and brief — Alexander v. Kessler

boſſſed

81-9393 wean

MT t2 LN

ALEXANDER L STEVAS,

CLP

IN THE SUPREME COURT OF THE bene

‘

OCTOBER TERM, 1981

HARRY TOUSSAINT ALEXANDER, PETITIONER

V.

DISTRICT OF COLUMBIA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Harry Toussaint Alexander

Pro se

Suite 1102, 815 15th St. NW

Washington, DC 20005

QUESTIONS PRESENTED

Whether the evidence was sufficient to

show that Petitioner willfvlly and intention-

ally disrupted and delayed the orderly pro-

cess of the trial or attempted to defeat the

prompt administration of justice?

Whether the trial court abused its dis-

cretion by failing to fully consider the

emergency situation which precipitated Peti-

tioner's excusable tardiness at trial?

Whether the trial court's action was pre-

dicated on facts which took place outside of

the presence of the court requiring disposi-

tion upon notice and hearing?

Whether special and important reasons

exist such that the Writ of Certiorari

should be issued?

Whether in denying Petitioner's Motion

for Reconsideration, the Appellate Court

denied him due process under law?

II

OPINLONS %u „46

TABLE OF CONTENTS

Jurisdictional Statement ........

Statutes and Rules Involved ..........

Statement of the Case se „ „ „ „ „ „„ „ „ „„ „ „ „ „4 „

State of Proceedings in Which

Federal Question Sought to be

Reviewed was Raised eeeneeeneneneeneeeeeeee 8

Arguments in Favor of Granting

Writ „ „ „ „ „ „ „„ „„ „ „% „ „% „ „„ „% „% „„ „ „% „ „ „„ „% „% „„ „„ „„ „ „ „ „416 „% 9

I.

II.

The Evidence is Sufficient

to Show That Petitioner

Willfully and Intentionally

Disrupted and Delayed the

Orderly Process of the Trial,

Nor Did Petitioner Attempt to

Defeat the Prompt Administra-

„

The Trial court Abused Its

Discretion by Failing to

Fully Consider the Emergency

Which Precipitated Petitioner

Excusable Tardiness at Trial

-IiiI-

R WwW NHN Ff

„ „ „ „ 9

III. The Trial Court's Action

Was Predicated on Facts

Which Took Place Outside

Of The Presence of the

Court Requiring Disposition

Upon Notice And Hearing ...... 22

IV. Special And Important

Reasons Exist For Grant of

The Writ of Certiorari ....... 28

V. In Denying Petitioner's

Motion For Reconsideration

The Appellate Court Denied

Him Due Process Under Law .... 31

Conclusion ‚ ＋6 33

Appendix A KKK sae sevenne vee la

„b „6 0 „ 6 „6 5a

Appendix C „„ „ „„ „ „ „ „„ „„ „% % „„ „% „ „ „ „„ „ „ „„ „ „ „4 „46% 2 0a

Appendix D „ „ „ „ „ „„ „„ „% „ „% „ „% „ „ „% „ „% „ „ „ „ „6 „%“ 2 1a

Appendix E „ „ „„ „ „% „ „ „„ „„ „ „ „ „ „6 „ „ „ „ „„ „„ „ „ „ 2 9a

IV-

TABLE OF AUTHORITIES

Cases

Bloom v. Illinois, 391 U.S. 194

a ewes so 6G ees odedownacecébe 10

Ex parte Terry, 128 U.S. 289 (1888)... 9

In re Allis, 531 F. 2d 1391 (th Cir.

*eenrineneeneneeneeeneneeneeneneeeneneeneeneneeee 12

In re Brown, 455 F. 2d 999 (D.C. Cir.

„ „„ „ „„ „ „% „ „ „ „ „ „ „ „ „ „„ „„ „„ „ „ „ „ „ „ „„ „„ „„ „„ 10

In re Farguhan, 160 U.S. App. D.C. 295,

F. (1973) “ene „ „„ „ 11,16

In re Nesbitt, 313 A. 2d 576 (Db. c. App.

Taylor v. Hayes, 418 U.S. 488 (1974). 10

In re Oliver, 333 U.S. 257 (1948) . . .10

In re Williams, 509 F. 2d 949

. nie „

In the matter of Alexander, 431 A. 2d (b.

C. App. 1981) Appendix 2 J i

In the matter of Brown, 320 A. 2d 92

... 10

Kellar v. 8th Jud. Dist. Ct., 470 F.

2d 434 (Nev. 1970)............... 14

Matter of Brown, 320 A. 2d 576 (D. C.

App. EWES oc eb é tue ee 292 „ „„ „7% 14

Matter of Yengo, 167 N. J. Supp. 66,

" (N.J. A.D. 1979) .... 11

28 v. Edwards, 69 Ill. App. 2d

5 See Wee 26.969 (1979) 2.2020. 13,17

Roselle v. State, 509 P. 2d 486 (Okla.

|} | a eeeneeeeneteneneeneneneeneteeerteeee#ee 15

Sykes v. United States, 144 U.S. App.

D. C. 531, 444 F. 2d 928 (19711. 11,14

States v. Abascal, 509 F. 2d

24 752 (9th Cir. 1575) 7 27

United States v. Marra, 482 F. 2d 1196

(2nd Cir. 1973) „ „„ „ „ „ „4 „41 „ „ „„ „„ „ „4 „46 27

United States v. Seale, 416 F. 2d 366

(7th Cir. r “eee „ „46 3924 „4 „46 11

-VI-

OPINIONS BELOW

The May 16, 1979, Order of the Superior

Court of the District of Columbia finding

Petitioner in contempt is located in the

Appendix at page 1. The Superior Court's

Order of June 13, 1979, denying reconsider-

ation is located at pages 3 through 9 of

the Appendix. The Order of the District of

Columbia Court of Appeals dismissing Peti-

tioner's appeal is found at page 10 of the

Appendix. The Memorandum and Order of the

District of Columbia Court of Appeals denying

Petitioner's Motion for Reconsideration

appears at 431 A. 2d (D.C. App. 1981),

Appendix 2, page 11 of the Appendix. The

District of Columbia Court of Appeals' Order

denying Petitioner's Petition for Rehearing

en banc is page 19 of the Appendix.

JURISDICTIONAL STATEMENT :

Jurisdiction of the Supreme Court rests

in 28 U.S.c. § 1257. On June 13, 1979, the

Superior Court of the District of Columbia

denied Petitioner's Motion for Reconsider-

ation. On June 4, 1980, the District of

Columbia Court of Appeals dismissed Peti-

tioner's Appeal. On May 27, 1981, the bis-

trict of Columbia Court of Appeals denied

Petitioner's Motion for Reconsideration.

On July 20, 1981, the District of Columbia

Court of Appeals denied Petitioner's Peti-

tion for Rehearing en banc. This petition

is filed within ninety days of that date.

STATUTES AND RULES INVOLVED

Fifth Amendment of the United States

—

Constitution:

No person shall be held to answer for 4

capital, or otherwise infamous crime, unless

on 4 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 on 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.

7 >

Rules of the Supreme Court

Rule 19(1) (a)

Rule 19(1) (b)

Superior Court Rules

Civil Rule 104 (b) (3)

Civil Rule 104(b) (4)

ne

Civil Rule 104 (b) (5)

Criminal Rule 42

STATEMENT OF THE CASE

On May 16, 1979, Petitioner vas sum-

marily judged in contempt of court and or-

dered to pay a fine of one hundred and fifty

dollars ($150.00) or serve a sentence of five

days in jail. The evidence upon which the

Court's judgment rested is as follows:

On May 11, 1979, Petitioner was to

appear in Courtroom 14 at 9:00 a.m. to con-

tinue the case of District of Columbia v.

Reed (Cr. No. T-14902-78). Since Petitioner

was feeling quite ill and had begun to run

behind on his schedule, he instructed a clerk

at his office to notify the Court that he

4

would be a few minutes tardy. Petitioner's

clerk complied, but was unable to reach any

one in the trial court's chambers until 8:58

a.m. (Tr., p-3). By coincidence, the trial

judge had taken the bench at 8:58 a.m. The

trial judge accepted Petitioner's explanation

and dismissed the matter of tardiness with-

out significant comment. (Tr., p-).

On May 14, Petitioner, through no fault

of his own, was required to appear before

another court during the luncheon recess in

the Reed case. He was unable to leave the

second court in question until 2:08 p.m., or

six minutes after the trial 25000 in Reed

was ready to proceed. Again, the trial judge

accepted Petitioner's explanation without

"tee

comment, thereby implying that Petitioner's

explanation was satisfactory beyond reser-

vation.

On May 16, Petitioner was scheduled to

appear before the trial judge in Reed in

order to resume trial. However, shortiy be-

fore leaving for court, he was contacted

by a client who was in danger of suffering

immediate eviction unless certain papers

were immediately filed in Landlord and Tenant

Court. Petitioner was in no way responsible

for the client's predicament. Nevertheless,

he decided to come to the aid of the client

in the matter, as a conscientious attorney

would have cone.

He was also mindful of his duty to

appear in Courtroom 14 by 9:15 a.m. Faced

with this situation, Petitioner again in-

structed his office to notify the court that

he would be delayed a few minutes due to an

emergency with respect to a client.

A clerk began telephoning the trial

judge's chambers at 8:45 a.m., but was un-

able to reach anyone there until 9:27 a.m.

(Tr. II, p. 3). Petitioner stopped by Court-

room 14 at 9:00 a. m. tc personally apprise

the court of the dilemma but no one had

arrived. He, therefore, proceeded to Land-

lord and Tenant Court with the expectation

that said matter would be completed in suf-

ficient time to allow Petitioner to be in

court on a timely basis.

oF «

At 9:28 a.m., the trial judge sent a

clerk to Landlord and Tenant Court to summon

Petitioner to chambers. At 9:58 a.m., Peti-

tioner was in chambers, and shortly there-

after was advised that he was in contempt

of court. Petitioner gave an explanation

and thereafter tried unsuccessfully on sev-

eral occasions to elaborate, but the trial

court refused to hear him (Tr. II, p.-5).

Therefore, the Court denied a Motion for Re-

consideration which further elucidated the

matter.

STATE OF PROCEEDINGS IN WHICH

PEDERAL QUESTION SOUGHT TO BE

REVIEWED WAS RAISED

Petitioner raised the instant Federal

quest ion for which he seeks review in his

Motion to Reconsider and Vacate Contempt

Citation before the Superior Court of the

District of Columbia and then again in his

Motion for Summary Reversal before the Dis-

trict of Columbia Court of Appeals.

ARGUMENTS IN FAVOR OF GRANTING WRIT

I. THE EVIDENCE IS INSUFFICIENT TO

SHOW THAT PETITIONERWILLFULLY

AND INTENTIONALLY DISRUPTED AND

DELAYED THE ORDERLY PROCESS OF

THE TRIAL, NOR DID PETITIONER

ATTEMPT TO DEFEAT THE PROMPT

ADMINISTRATION OF JUSTICE

The judiciary's inherent power to punish

affrontsto its authority as criminal contempt

rests on the premise that courts must have

the ability to vindicate their authority by

ensuring obedience to their orders and re-

spect for their processes. ix parte Terry.

128 U.S. 289 (1888).

Nevertheless, the Supreme Court has re-

cognized that “criminal contempt is a crime

in every fundamental respect.“ Bloom v.

Illinois, 391 U.S. 194 (1968). Hence a con-

temnor is entitled as a matter of due pro-

cess, to most of the procedural protections

available to defendants in ordinary criminal

prosecutions. In re Oliver, 333 U.S. 257

(1948); Taylor v. Hayes, 418 U.S. 488 (1974).

For example, each element of a criminal

contempt, including the requisite mental

state, must be proved beyond a reasonable

doubt. In re Brown, 455 F. 2d 999 (D.C.

Cir. 1971); In the Matter of Brown, 320 A. 2d

92 (D.C. App. 1974). The element of mens

rea is not eliminated or reduced merely be-

cause summary procedures are invoked. In re

- 10 -

Williams, 509 F. 2d 949 (2nd Cir. 1975);

United States v. Seale, 461 F.2d 366 (7th

Cir. 1972).

The primary limitation on a court's

power to punish attorneys for contempt is the

well-established principle that a contemnor

must have “will fully disregarded" the author-

ity of the court. Sykes v. United States,

144 U.S. App. D. C., 531, 44 F. 2d 928 (1971);

See also, In re Farguhan, 160 U.S. App. 295,

492 F. 2d 561 (1973).

Before the absence of an individual,

particularly an officer of the court, can

be adjudged willfully disrespectful or con-

tumacious, there must first be a finding of

fact as to the reasons therefore. Matter of

Yengo, 167 N.J. Supp. 66, 400 A.2d 517 (N.J.

11

A.D. 1979). As stated by the court In re

Allis, 531 F. 2d 1391, 1392 ($th Cir. 1976):

Absence (tardiness) alone is not

contempt. The reasons for the

default are important. A con-

tempt is a wilful disrespect or

disobedience of public authority

and the requisite wrongful intent

may be inferred from the attorney's

reckless disregard of his obliga-

tions to the Court. /citation

omitted7 If an explanation for

tardiness is made which is incon-

sistent with willful disobedience,

a hearing must be held, if the

facts are disputed, or, if the ex-

Planation is not accepted, there

is no contempt.

In the instant case, the trial court

accepted Petitioner's explanation for his

brief absence on two occasions, yet cited

those two occasions as evidence of contum-

acious conduct (Order dated May 16). More-

over, the manner in which the trial court

49° =

conducted the examination regarding Peti-

tioner's absence on the third occasion vio-

lated due process of law and its findings

were inconsistent with the evidence.

People v. Edwards, 69 Ill. App. 3d 629,

337 N. E. 2d 969 (1979) best illustrates

Petitioner's contentions. There, defense

counsel and prosecutors were advised to be

in court at 11:00 a.m. However, appellant

did not arrive until 11:50 a.m. He in-

formed the court that he had been delayed

in another proceeding, and that he had ad-

vised his secretary to notify the court

that he would be late. Ne one in the court,

however, acknowledged having received such

a call. Appellant was then held in contempt

of court. In reversing appellant's convic-

tion for contempt, the appellate court held

» 43 <

that the fact-finding hearing violated due

process, and the trial court had failed to

prove that appellant's secretary had not, in

fact, called or "failed to follow his in-

struction,” i.e., the evidence failed to

establish that Appellant "possessed the re-

quisite intent to place the court in dis-

repute or to obstruct the administration of

justice.” Id. at 971; accord, Matter of

Brown, 320 A. 2d 92 (D.C. App. 1971). See

In re Nesbitt, 313 A. 2d 576 (D.C. App. 1973);

Sykes v. United States, supra.

If an officer of the court is unable to

appear through no fauit of his own, his

action cannot be considered wilful. Kellar

v. 8th Jud. Dist. Ct., 470 P. 2d 434 (Nev.

#16 -

1970). Roselle v. State, 509 P. 2d 486 (Ok.

1973) typifies cogent reasons. There, defense

counsel was held in contempt for arriving

at court fifteen minutes late. Counsel

was unfamiliar with the town where the court

was located and had gotten lost. In rever-

sing appellant's conviction, the court held,

significantly, 509 P. 2d at 488:

In conclusion, we note an act of

God is not the exclusive defense to

a trial court's allegations of Con-

tempt. The record in this case at

bar manifests a requirement of

attorneys always to be present when

a case is scheduled, without allow-

ing any flexibility. We find this

requirement to be unrealistic.

(Italics supplied).

A similar situation prevailed in the in-

stant case. On each of the three occasions

where Petitioner believed he would be late

18 «

4

for the resumption of trial, he attempted,

both personally and via his office, to

notify the trial court before hand. On one

occasion, he was late due to illness; on a

second occasion, he was before another court

and could not simply walk out." In re

Praguhan, supra. On the third occasion, he

was faced with the choice of permitting a

client and family to be possibly evicted or

notifying the court that he would be a few

minutes late and proceeding to help the

client in Landlord-Tenant Court. For this,

the trial court ruled that Petitioner had

wilfully “disrupted and delayed the orderly

process of the trial, defeating the prompt

administration of justice." (Order, May 16).

Ironically, the process of the trial was

— 2

>

delayed more than an hour acter Petitioner

was held in contempt. one of the jurors

delayed the trial because automobile

trouble precluded timely arrival.

The facts upon which the court based

contempt of court were wholly insufficient

to establish beyond a reasonable doubt that

Petitioner “possessed the requisite intent

to place the court in disrepute or to ob-

struct the administration of justice."

Edwards, supra. Moreover, Petitioner's

absence did not cause the delay; the total

delay was caused by the juror's excusable

conduct. Counsel's tardiness should have

been excused under the circumstances, since

it stemmed solely from his good faith efforts

~ ay =

to advise the trial court in accordance

with accepted and established practices and

his concomitant endeavors to protect another

client's fundamental rights in an emergency

matter. Even if counsel had not sought to

handle an emergency matter, trial could not

have resumed without the juror.

Accordingly, Petitioner respectfully

suggests that the evidence is insufficient

to show that Petitioner wilFully and inten-

tionally disrupted or delayed the orderly

process of the trial, nor did Petitioner

attempt to defeat the prompt administration

of jusgice.

11. 515 TRIAL COURT ABUSED ITS

FAILING TO

FULLY CONSTDER THE EMERGENCY

WHICH PRECIPITATED PETITIONER'S

EXCUSABLF TARDINESS AT TRIAL.

» 16 «

Rule 104 of the Civil Rules of the

Superior Court of the District of Columbia

sets forth procedures and priorities for

the avoidance and resolution of conflicts

in engagements of counsel among the courts

<n the District of Columbia. The orders

issued by the Honorable Gladys Kessler, of

the Superior Court, are expressly based on

Rule 104 (b) (3) which provides that Nontrial

matters in a trial court will yield to trials

in any court.”

However, Rule 104 provides further

guidelinesfor ascertaining the priority to

be accorded’ to non-trial matters vis-a-vis

scheduled trials. Specifically, Rule 104{b)

(4) requires consideration of the urgency and

= {@ -

complexity of non-trial matters, as well as

the difficulty of rescheduling the non~trial

matter. Further, said rule explicitly pro-

vides that the court "will be receptive to

to counsel's application 8 change of

the trial date or an adjustment of the hours

of trial.

Further, Rule 104 (b) (5) provides that,

"The judges of this court, insofar as prac-

tical, will attempt to adjust their schedules

to enable an attorney to attend to brief

non-trial matters. That rule states

that "It is recognized that emergency situa-

‘tions will arise and that certain types of

cases may require special consideration.

The judges of this court will attempt to

a Oo

accommodate these situations by recognizing

the need to depart on occasion, from rigid

scheduling rules

In this matter, it was the undisputed

assertion of the Petitioner that just such

an emergency situation had arisen. Never-

theless, the trial court chose to totally

ignore the dilemma faced by the Petitioner,

purporting to base its contempt citation

entirely on the tardiness of the Petitioner

and on the non-trial nature of the conflic-

ting matter.

For this reason, the Petitioner re-

spectfully submits that the trial court ab-

used its discretion in that said court

failed to consider all factors required pur-

suant to its own Civil Rules.

= 21 «

111. THE TRIAL COURT'S ACTION WAS

PREDICATED ON FACTS WHICH

TOOK PLACE OUTSIDE OF THE

PRESENCE OF THE COURT REQUIRING

DISPOSITION UPON NOTICE AND

HEARING.

The Rule governing criminal contempt,

Rule 42 of the Criminal Rules of the Superior

Court of the District of Columbia, contem-

Plates two separate and distinct circum-

stances under which criminal contempt may be

adjudicated.

Rule 42(a), pursuant to which the court

ostensibly acted, provides that the matter

may be disposed of summarily if the “judge

certifies that he saw or heard the conduct

consituting the contempt and that it was

committed in the actual presence of the

court, "

= 92.-

Rule 42(b) provides that in all other

situations, criminal contempt must be dis-

posed of upon notice and hearing, allowing

a reasonable time for the preparation of

the defense.

While the trial court purported to act

solely on the basis of the nonappearance of

counsel, the Order dated May 16, 1979, and

the Memorandum Order dated June 13, 1979,

Clearly indicate that the court acted on the

basis of additional factors which occurred

outside the presence of said Court.

Specifically, the court determined

that Petitioner “wilfully and intentionally

chose to take care of a non-trial ‘matter in

the Landlord and Tenant Branch of this Court,

942

without obtaining permission of this trial

court; that Petitioner “appeared in this

Court's chambers at 9:45 a.m. only after

being summoned to Chambers by the Court's

law clerk;" and that Petitioner's conduct

“was not justifiable on the grounds of

properly representing his client“ (Order,

May 16, 1979).

Further, the trial court based its

action on the fact that it considered the

matter "a relatively simple ‘driving under

the influence case; on its attempt to

expedite the trial; on its perception of how

long such a case should take; on the back-

log of traffic cases; on its mistaken belief

that Petitioner failed to leave any message

» 24 <-

as to his whereabouts; on the fact that

Petitioner's law clerk telephoned the court-

room clerk to inform the court of Peti-

tioner's whereabouts, and the reason for

delay and finally, on the fact that Peti-

tioner “was located, not before a judge in

Landlord and Tenant Court, but in a cleri-

cal office of the Landlord and Tenant

Branch.” (Memorandum Order, June 13, 1979).

Therefore, it is clear that the Court

did not seek to punish Petitioner for tar-

diness, but sought to punish him because

the Court believed that Petitioner had not

sought permission; that the non-trial matter

was not of sufficient importance; that the

Court was backlogged; that the matter was

ot. Sve

taking too long and that Petitioner was in

a clerical office rather than before a

judge.

Ironically, the Court chose to ignore

the uncontradicted assertions of the

Petitioner. Had the Court done so, it

would have been required to find that an

emergency situation existed, that Peti-

tioner had personally appeared in court

at least fifteen (15) minutes prior to the

appointed time and that Petitioner had also

attempted to inform the Court throvgh his

office personnel.

Because the due process requirements

of notice and hearing need not be observed

in punishing contempt summarily, application

«26 <

of the rule permitting summary punishment

of contempt must be narrowly limited.

United States v. Abascal, 509 F. 2d 752

(9th Cir., 1975). Therefore, in order to

invoke subdivision (a) of the rule, contempt

must not only be committed directly under

the eye or within the view of the court,

but must be an open threat to the orderly

procedure of the court and a flagrant de-

fiance of the person and presence of the

judge before the public. United States v.

Marra, 482 F.2d 1196 (2nd Cir., 1973).

Significantly, this requirement is one not

only of the rule but of due process. United

States v. Meyer, 462 F. 2d 827, 149 U.S.

App. D.C. 212 (1972).

3227 =

roe

mii

For these reasons, the Petitioner res-

pectfully submits that the trial court

erred in summarily finding Petitioner in

contempt while considering circumstances

which were not witnessed by said Court

thereby depriving Petitioner of due process

of law guaranteed by the Fifth Amendment.

IV. SPECIAL AND IMPORTANT REASONS

OF CERTIORARI = a

Rule 19 of the Rules of the Supreme

Court indicates the considerations governing

review on certiorari. These considerations

inclucs the situation where a state court

has decided a federal question not thereto-

fore determined by the Supreme Court or that

is not in accord with applicable decisions

of the Court. Rule 19(1) (a).

= 26 -

In this matter, the Superior Court of

the District of Columbia has ruled that it

has the power to summarily dispose of

criminal contempt matters in which consi-

deration is given to selected factors oc-

curring outside the presence of the Court.

While Petitioner is not aware of any

Supreme Court cases on point, Petitioner

respectfully suggests that the issue of due

process as guaranteed under the Fifth Amend-

ment places the procedure utilized in the

category of constitutional violations of

the highest order. In essence, the trial

court has paid lip service to the require-

ments of due process and its own rules while

at the same time ignoring both. When a

= 29 -

criminal conviction of an officer of the

vent is at stake, review by this Honorable

Court is clearly warranted.

Moreover, the facts indicate that the

trial court decided an important state

question in such a way as to conflict with

its own rules. Rule 19(1)(b).

Wherefore, the premises considered, the

Petitioner respectfully asserts that the

trial court has decided the federal ques-

tion of due process and the state question

of the applicability of its own rules in

a manner that has so far departed from the

accepted and usual course of judicial pro-

ceedings as to call for the exercise of

this court's power of supervision.

- 30 -

V. IN DENYING PETITIONER's MOTION

R RECONSIDERATION THE

DENIED HIM DUE

R LAW.

On June 20, 1980, the District of Col-

umbia Court of Appeals denied Petitioner's

Motion for Reconsideration, finding that

the Court was without jurisdiction to con-

sider the appeal. However, in her separate

statement, The Honorable Julia Cooper Mack

noted that’ Petitioner was certainly faced

with an ambiguity as to what was a final

order of the trial court for purposes of

appeal. In the Matter of Harry Toussaint

Alexander, 431 A. 2d (D.C. App. 1981)

Appendix No. 2.

As pointed out by Judge Mack, the re-

cord does not clarify the matter. For the

—_—

Appellate Court to penalize Petitioner who

has been summarily found in criminal con-

tempt, by precluding jurisdiction, is a

denial of due process as guaranteed by

the Fifth Amendment. While Petitioner is

not aware of any Supreme Court cases di-

rectly on point, the issue of due process

Anadthe Appellate court's denial of its pro-

tections here places the finding of no

jurisdiction in the category of constitu-

tional violations of the highest order.

CONCLUSION

In view of the foregoing, and the re-

cord in toto. it is respectfully submitted

that Petitioner's Petition for Writ of

Certiorari be granted.

Respectfully submitted,

oo. see .

int Alexander

te 1102

815 15th Street, N. u.

Washington, D.C. 20005

(202) 667-1616

UBN 924381

= 33 -

APPENDIX A

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

MISDEMEANOR TRAFFIC BRANCH

DISTRICT OF COLUMBIA :

Plaintiff, :

v. : Docket No.

T-14902-78

ALPHONSO REED, :

Defendant. :

This Court finds that Harry Toussaint

Alexander, Esquire, on May 16, 1978 in the

course of representing the above-named

Defendant at trial, willfully and inten-

tionally failed to appear at 9:15 a.m., the

Appendix - Page la

starting time for continuation of the trial

in the above-cited matter, with full know-

ledge of S. C. R. Civil Rule 104 establishing

that trial obligations take precedence over

all other matters. The Court further finds

that Mr. Alexander instead of appearing in

Courtroom 14 for the continuation of trial

in the present case, willfully and inten-

tionally chose to take care of a non-trial

matter in the Landlord and Tenant Branch of

this Court, without obtaining the permission

of this trial Court. The Court further finds

that Mr. Alexander appeared in this Court's

Chambecs at 9:45 a.m. only after being sum

moned to Chambers by the Court's law cleck.

Finaliy, the Court finds that there have been

Appendix - Page 2a

earlier instances in the course of this trial

an which Mr. Alexander has been late to court

Gespite a definite starting time having been

set for trial proceedings.

, It appeaxs to the Court that the above

conduct of Mr. Alexander was per se contemp-

tnous in that it:

(1) disrupted and delayed the orderly pro-

cess of the trial, defeating the prompt ad-

ministration of justice;

(2) was not justifiable on the grounds of

properly representing his client;

(3) was inconsiderate and disrespectful to

the Court, the jurors, the Defendant, and

the Government counsel, all of whom are par-

ticipants in the present trial.

Appendix - Page 3a

WHEREFORE, it is hereby this 16th day

of May, 1979,

ORDERED: That Harry Toussaint Alexander,

Esquire be held in contempt of this Court;

and, it is

FURTHER ORDERED: That he pay a fine of

$150.00 or serve five (5) days in jail.

—

2

Dated: May 16, 1979

Copies to:

Harry Toussaint Alexander, Esquire

815 - 15th Street, NW

Attorney for Defendant

Washington, DC 20005

Steven H. Leventhal

Assistant Corporation Counsel

Room 4485

Office of Corporation Counsel

DC Courthouse

Washington, DC 20001

Appendix - Page 4a

APPENDIX B

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

MISDEMEANOR TRAFFIC BRANCH

DISTRICT OF COLUMBIA,

Plaintiff,

Docket No.

T-14902-78

V.

ALPHONSO REED,

Defendant.

MEMORANDUM ORDER

This matter was certified to the Court

on May 9, 1979, for a trial by jury on a

charge of Driving Under the Influence, in

violation of D.C. Code 8 40-605. on May 16,

1979, as a result of defense counsel Harry

Appencix - Pace 5a

Toussaint Alexander's failure to appear in

Courtroom 14 at the designated time for

trial, 9:15 a.m., this Court issued a con-

tempt citation and imposed a penalty of $150

or five days in jail. On May 29, 1979,

Mr. Alexander filed a Motion to Reconsider

and Vacate Contempt Citation. For the fol-

lowing reasons, the Motion is denied.

Findings of Fact

At 9:40 a.m. on May 9, 1979 the present

case was certified for trial to this Judge.

The jacket contained a defense Motion

to Dismiss for Lack of Speedy Trial which

had not yet been heard or decided. Testi-

mony and argument were heard, and the Motion

was denied. Because of the length of the

Appendix - Page 6a

Motion hearing, and consideration of other

preliminary matters, the case was continued

for trial until the next day at 9:15 a.m.

During the course of the Motion pro-

ceeding on May 9, 1979, Mr. Alexander repre-

sented to the Court that a person from out

of town was waiting for him in his office,

and requested a lunch recess that was far

earlier and longer than the Court would have

ordinarily granted. However, defense coun-

sel's request was granted. Despite the

Court's effort to accommodate Mr. Alexander's

personal schedule, Mr. Alexander returned to

the courtroom at least fifteen minutes late

and offered no reasons for his tardiness.

Trial commenced May 10, 1979, continued

to May 11, 1979, May 14, 1979, and May 15,

Appendix - Page 7a

1979. On each day the Court set the

starting time for 9:15 a.m. Mr. Alexander

was late in returning to the courtroom on

numerous occasions, ranging from fifteen

to five minutes. It was the Court's obser-

vation that Mr. Alexander was rarely--if

ever--on time after overnight and luncheon

recesses.

By the morning of May 16, 1979, after

hearing four long days of testimony (starting

at 9:15 a.m. and concluding between 4:45 and

5:15 p.m.) on a relatively simple “driving

under the influence case“ which turned on

the credibility of two key witnesses, the

Court had determined to call counsel from

the courtroom at 9:15 a.m. to meet in

Appendix - Page 8a

Chambers to discuss proceeding more expedi-

17

t ious ly with the trial

I7 The Court was seriously concerned about

the disproportionate period of time

being spent in the trial of this case.

Having tried numerous such cases in the

six weeks since being assigned to Traf-

fic Trials, and having conducted trials

producing both acquittals and guilty

verdicts, and having observed all manner

of both defense and government counsel,

the Court was well aware that such cases

should ordinarily take 1-2 days to try.

This was particularly true where the gov-

ernment offered no breathyilizer results,

as in the present case.

Because of these concerns, the Court ul-

timately imposed rather strict procedural

rules on counsel for both sides--to which

no objection was made--and testimony was

in — completed by 5:00 p.m. on May 16,

1979.

In addition, the Court was well aware

that she was the only judge handling

Traffic trials, and that as of May l,

1979, there was a backlog of 776 cases

awaiting trial.

Appendix - Page 9a

Mr. Alexander failed to appear in Court-

room 14 at 9:15 a.m., or to leave any mes-

sage as to his whereabouts. At 9:27 a.m.,

his law clerk telephoned the courtroom clerk

to inform her that Mr. Alexander was in Land-

lord and Tenant Court, taking care of another

matter, and would be late for trial. No mes-

sage was left as to when, if ever, he might

appear.

At 9:35 a.m., this Court sent her law

clerk to find Mr. Alexander, and to ask him

to report to Chambers immediately.

I7 Footnote continued

Of these 776 cases, 327 were calendared

for trial, and 449 were on the status

calendar.

Appendix - Page 10a

Mr. Alexander was located, not before a judge

in Landlord and Tenant Court, but in a cler-

ical office of the Landlord and Tenant Branch.

After being directed to appear in this court

Chambers, he reported at 9:45 a.m. After

setting forth its position on defense coun-

sel's contumacious conduct, and asking de-

fense counsel certain questions to elicit his

whereabouts, and whether he had been in trial

before another judge, this Court made a sum-

mary finding that Mr. Alexander was in direct

contempt of court. Shortly thereafter, a

written Order was issued and the penalty of

$150 or five days in jail was imposed.

Conclusions of Law

Direct criminal contempt occurs when a

person willfully and intentionally engages

Appendix — Page lla

in contumacious conduct in the presence of

“ee bd ae *

the court. D.C. Code 811-944; S.C.R. Crim.

R. 42(a); In Re Hunt, 367 A.2d 155 (D.C. App.

1976).

Pursuant to S. C. R. Civil R. 104 cb) (3),

providing that trials take precedence over

all other matters, all counsel have a clear

duty to appear at the court-appointed time

in an ongoing trial. Failure to appear timely

is deemed to be contumacious conduct occurring

in the presence of the court. Sykes v. U. S.,

264 A. 2d 894 (D.C. App. 1971); In Re Nesbitt,

313 A. 2d 576 (D.C. App. 1973); In Re Sol

Rosen, 315 R. 2d 152 (D.C. App. 1974); In Re

Hunt, supra.

In the instant case, counsel was di-

rected to sppear at 9:15 a.m. (the same

Appendix - Page 12a

starting time set for the four earlier trial

days), but failed to do so. He subsequently

appeared at 9:45 a.m. Since Mr. Alexander

only appeared after being summoned, it is

not clear at what time he would have ever

chosen to appear in RRL On virtually

identical facts, the District of Columbia

Court of Appeals has upheld contempt cita-

tions where counsel appeared seven minutes

late in one atin 2 and thirty minutes

4/

late in another.

27 Counsel contends that in addition to a

finding of lateness on the date in ques-

tion, this Court must also establish a

pattern of delay. While the Court finds

this argument unmeritorious and contrary

to case law, In Re Hunt, supra, at 156

and In Re Sol Roseny seer at 152, it

has already been not that counsel was

in fact repeatedly late, delaying pro-

ceedings for up to fifteen minutes.

3/ In Re Hunt, supra at 156.

4/ In Re Sol Rosen, supra at 152.

Appendix - Page l3a

Defense counsel's own Motion and affi-

davits support rather an contradict this Court's

finding of unjustified lateness. They show

clearly that without permission or explana-

tion, counsel “deliberately and willfully sub-

stituted his own judgment for a direct order

of the Court." In Re Hunt, supra at 157.

Mr. Alexander admits to his unexplained

lateness, but argues that the requisite mens

rea was not present to sustain a finding of

criminal contempt, inasmuch as “counsel did

not willfully or intentionally fail to com-

municate with this court. Intent to commu-

nicate with the Court, however, is not the

intent required to establish a direct con-

tempt of this nature. neee the issue is

whether counsel intentionally and wilfully

Appendix - Page l4a

chose to appear elsewhere on behalf of an-

other client, and thereby “substituted his

own judgment" for the judgment of this

„ This is the intent required to sup-

port a finding of direct contempt of Court,

and this is the intent which is amply sup-

ported by defense counsel's own sworn papers

tir. Alexander, who is an experienced

trial lawyer, as well as a former Judge

of this Court, was fully familiar with

S.C.R. Civil R. 104(b) (3), giving pri-

ority to trial matters. The procedure

which should have been followed, was an

advance request to appear late so as to

handle the Landlord and Tenant matter.

It should also be noted that Mr. Alexander

was not even found transacting business

in another courtroom before another Judge.

Rather, he was merely taking care of

clerical matters in the Landlord and

Tenant Finance Office. Perhaps that

accounted for his reluctance to request

a further delay in a Driving Under the

Influence trial entering its fifth day.

Appendix - Page 15a

6/

and by the facts of the case

Where, as here, the Court finds a per-

son in direct criminal contempt, summary

punishment is the appropriate remedy. S.C.R.

Crim. R. 42(a). As the record reflects and

as required by law, the contempt citation was

preceded by oral findings of fact, and was

followed by the issuance of an unambiguous

written Order, which informed defense counsel

what conduct constituted the contempt, and the

67 In In Re Hunt, supra, the Court of

Appeals upheld a nding of contempt

when a lawyer chose to resolve two other

non-trial matters in other courtrooms.

Although the lawyer had not intention of

being late the Court held that by

R= bacon his own order of prior-

ities” instead of complying with the

trial judge's order to appear, the

lawyer had demonstrated the requisite

criminal intent.

Appendix - Page l6a

penalty which flowed from the contemptuous act.

S. C. R. Crim. R. 42(a); In Re Hunt, supra, at

187.

This court strongly believes that the

contempt power should be used sparingly and

only when counsel's conduct is clearly con-

tumacious. Nor should it be used for unin-

tentional or minor infractions of Court rules.

Defense counsel seeks to justify his conduct

on the ground that it was a “mere technical-

7/

ity." Willful and intentional failure to

ir Alexander also argues that since the

Court was forced to delay resumption of

the trial until 11:15 a.m. because of

the absence of a juror, his non-

appearance should be excused.

The fortuitious lateness of a juror --

who called in several times that

Appendix - Page 17a

appear at the pre-established time for resump-

tion of trial, causing inconvenience and delay

to the jurors, the defendant, opposing counsel,

and the Court, is never a "mere technicality."

On the contrary, Mr. Alexander's conduct ex-

emplifies the recurring problems faced by the

Judges of the Superior Court in their efforts

to maintain an orderly system of justice and to

keep abreast of their calendars," In Re Sol

Rosen, supra at 153.

77 Footnote continued

morning to advise the Court that his car

had broken down and that he was on his

way — can hardly serve to excuse

Mr. Alexander's conduct. As a practical

matter, because of Mr. Alexander's late-

ness, as well as the juror's assurances

of arrival, the Court chose to wait for

approximately one hour until he did in

fact arrive. Had counsel been in court

on time, the Chambers conference would

have been concluded by 9:30 a.m., and

the Court would have designated alter-

nate juror 1 to replace the missing

juror.

Appendix - Page 18a

WHEREFORE, it is hereby this Ith day of june, 1979,

ORDERED: That defense counsel Harry

Toussaint Alexander's Motion to Reconsider

and Vacate Contempt Citation be, and is,

hereby denied.

Dated: June 13, 1979

Copies to:

Harry Toussaint Alexander, Esquire

Suite 1102

815 - 15th Street, N. u.

Washington, D.C. 20005

Steven H. Leventhal

Assistant Corporation Counsel

Office of Corporation Counsel

Room 4485

D.C. Courthouse

Washington, D.C. 20001

Appendix - Page 19a

APPENDIX C

DISTRICT OF COLUMBIA

COURT OF APPEALS

No. 79-699 Filed June 4, 1980

IN THE MATTER OF:

HARRY TOUSSAINT ALEXANDER, T 14902-78

Appeliant.

BEFORE: Kern and Ferren, Associate Judges.

On consideration of appellant's motion

for summary reversal, appellee's opposition

filed with respect thereto, appellee's mo-

tion for summary affirmance, and the record

on appeal, it is

ORDERED that this appeal is hereby dis-

missed for lack of jurisdiction (see D.C. App.

R. 4-II(b)7.

PER CURIAM

Copies to:

Honorable Gladys Kessler

Clerk, Superior Court

Harry Toussaint Alexander, Esquire

815 15th Street, NW. #1102, 20005

Richard W. Barton, Esquire

Deputy Corporation Counsel

Appendix - Page 20a

APPENDIX D

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 79-699

IN THE MATTER OF:

HARRY TOUSSAINT ALEXANDER, APPELLANT.

On Motion for Reconsideration

2 ws 7

(Hon. Gladys Kessler, Trial Judge N

(Submitted June 20, 1980 Decided May 27, 1981)

Harry Toussaint Alexander, pro se.

Judith W. Rogers, Corporation Counsel, with whom

Richard W. Barton, Deputy Corporation Counsel at the

time the Motion was filed, and Leo N. Gorman, Assistant

Corporation Counsel, were on the Motion for Summary

Affirmance, for appellee.

Before KERN, MACK, and FERREN, Associate Judges.

Opinion for the court by Associate Judge FERREN.

Separate Statement of Associate Judge MACK at p.

8.

FERREN, Associate Jude: On June 4. 1980, this court

dismissed appellant's appeal of an order of criminal con-

tempt for lack of jurisdiction due to the late filing of the

notice of appeal. On motion for reconsideration, we con-

1144

Appendix = Page 21a

clude once again that we are without jurisdiction to con-

sider the appeal.

fendant on a misdemeanor charge of driving while in-

toxicated. On the same day, the judge entered an order

pursuant to Super. Ct. Cr. R. 42(a), setting forth the

facts surrounding the contempt and impoeing a sentence

of a fine of $150 or five days in jail. On May 29, 1979,

appellant filed a “Motion to Reconsider and Vacate Con-

tempt Citation.” On June 13, 1979, the judge denied

the motion in a Memorandum Order. On June 20, 1979,

appellant filed a notice of appeal from the contempt

order of May 16. See D.C. Code 1973, § 11-721(a) (1);

D.C. App. R. 4 II (b).

On June 4, 1980, this court dismissed the appeal for

lack of jurisdiction on the ground that the appeal was

not timely filed. On June 19, 1980, appellant moved to

reconsider that dismissal. See D.C.App. R. 40(a). We

now grant appellant’s motion for leave to file the mo-

tion for reconsideration, time having expired, but deny

the motion for reconsideration on the merits.

II.

Appellant contends that his filing of a motion for re-

consideration in the trial court tolled the period for filing

the notice of appeal, and that because he filed his notice

of appeal within ten days of the trial court’s disposition

of his motion, his notice of appeal was timely. We per-

ceive no way in which appellant’s motion to reconsider

can be said to have tolled the appeal period.

111451

Appendix — Page 21a

3

The trial court’s order holding appellant in criminal

contempt and imposing sentence was a final, appealable

order. In re Cys, D.C.App., 362 A.2d 726, 728-29 (1976) ;

West v. United States, D.C.App., 346 A.2d 504, 505

(1975); D.C. Code 1973, §11-721(a)(1). Appellant

noted his appeal from that order.

The rules of this court provide that, in general, a

party must file a notice of appeal in a criminal case

“within ten days after entry of the judgment or order

from which the appeal is taken.” D.C. App. R. 4 II (b)

(1). The Clerk of the Superior Court entered the judg-

ment of contempt in the criminal docket on May 16,

1979; accordingly, the ten days for filing a notice of

ao, began to run from that date. See D.C.App. R. 4

(b) (4).

1 Appellant is not entitled to the additional three days

provided in D.C.App. R. 4 UI (b) (4) for filing a notice of

appeal when a judgment or final order is entered out of the

presence of the parties and counsel. An additional three

days is extended only if the order is entered “without pre-

vious notice to [the parties] of the court’s decision. .” Id.

Here, by contrast, the trial judge stated in her Memorandum

Order on appellant’s motion for recensideration that she

made “a summary finding that Mr. Alexander was in direct

contempt of court” in his presence.

Nor does this case fall within the exception to D.C.App.

R. 4 II (b) (4) postponing the effective date of the entry of

a judgment or order “where the trial judge clearly expresses

an intention that a written order condition the time for filing

an appeal.” United States v. Nicks, D.C.App., —— A.2d ——

(Nos. 79-655 & 79-697, March 3, 1981, slip op. at 5). The

trial court followed its oral finding of contempt later the same

day with a written order holding appellant in contempt and

imposing sentence. The record contains no indication that

the trial court considered the May 16 docket entry of the

contempt order or its own written order of the same date to

be anything but final.

11146]

Appendix - Page 23a

4

The rules also state that certain postjudgment motions

—specifically, “a timely motion in arrest of judgment or

for a new trial on any ground other than newly dis-

covered evidence”—toll the appeal period. D. C. App. R.

4 II(b) (2). Appellant’s motion to reconsider does not

come within the express seope of this rule.

First, appellant’s motion cannot be construed as a

motion for arrest of judgment. See Super. Ct. Cr. R. 34.

The court must arrest judgment only “if the indictment

or information does not charge an offense or if the court

was without jurisdiction of the offense charged.” Id.

Appellant made neither contention in his motion for

reconsideration.

Second, appellant’s motion arguably could be considered

a motion for a new trial. Because summary disposition

of a criminal contempt is prosecuted not upon notice of

hearing but simply by order of the judge observing con-

temptuous conduct, see Super. Ct. Cr. R. 42(a), a motion

for consideration would amount, in effect, to a request

for a “new trial.” See Super. Ct. Cr. R. 33. Nonethe-

less, even if we consider appellant’s motion for recon-

as a motion for new trial, it was not timely

filed. A motion for new trial must be filed “within 7

days after verdict or finding of guilty or within such

further time as the court may fix during the 7-day

period.” Id. Appellant filed his motion on May 29, 13

days after the trial court’s order of contempt. Because

the motion was not filed within seven days, even as a new

trial motion it cannot toll the time for filing a notice

of appeal. Cf. United States v. Stolarz, 547 F.2d 108,

110 (9th Cir. 1976) (untimely motion for new trial

under Fep. R. Crim. P. 33 does not extend time to file

notice of appeal), aff'd after remand, 550 F.2d 488 (9th

Cir.) , cert. denied, 434 U.S. 851 (1977).

111470

Appendix - Page 24a

5

Finally, appellant contends nat the filing of a motion

for reconsideration tolls the period for filing a notice of

appeal, even though our rules do not specifically so

provide.“ Even if we assume, contrary to the suggestion

in United States v. Junes, D.C.App., 423 A.2d 193, 196

n.4 (1980), that a motion for reconsideration can toll

? This court has rejected such a contention in the context

of appeals in civil cases. In 901 Corp. v. A. Sandler Co.,

D.C.App., 254 A.2d 411 (1969), this court held that in

the absence of specific authority, a motion for reconsidera-

tion does not toll the time for filing an appeal. See id. at 412.

The rules of this court governing civil appeals since have

been amended and now provide:

The running of the time for filing a notice of appeal

is terminated as to all parties by the timely filing pur-

suant to the rules of the Superior Court of the following

motions . . .:

a motion to vacate, alter or amend the order or

judgment;

sets and

any motion seeking relief in the nature of the fore-

going. [D.C. App. R. 4 II (a) (2).]

In Coleman v. Lee Washington Hauling Co., D.C. App., 388

A. 2d 44 (1978), we held that under the new rule “a motion

to reconsider a judgment or other appealable order, filed

within ten days of entry of such judgment or order, termi-

nates the running of the time for noting an appeal until

the motion is acted upon.” /d. at 47.

Because appellant filed the motion to reconsider this case

after the ten-day appeal period had expired, we need not

decide whether a motion to reconsider filed within the appeal

period would toll the appeal period in a criminal case. Accord,

United States v. Jones, D.C. App., 423 A.2d 193. 196 & n.4

(1980); see I'nited States v. Dieter, 429 U.S. 6. 8 & n.3

(1976) (per curiam); U'wited States v. Jones, 608 F. 2d 386,

390 (9th Cir. 1979): United States v. Woodruff, 596 F.2d

798, 799 (8th Cir. 1979) (per curiam).

11148]

Appendix - Page 25a

6

period for filing notice of a criminal

would have to be timely. See Stolarz,

0; ef. Browder v. Director, Department

, 4384 US. 27, 264 (1978) (same; civil

Superior Court Criminal Rules have no pro-

SSRESSS Sees ear

Tah ee

sg 3 8 f ing

Ht 1111117

Hine

HH]

rey

1174

Hip

States, D.C.App., 379 A.2d 708, 709 (1977)

Motion for Reconsideration is

ie

to the question of appellate

urisdiction over the order or judgment itself. For example,

, under Super. Ct. Cr. R. 33, a motion for a

on newly discovered evidence can be made

thin two years of judgment. This, however, does not ex-

ts for direct appeal. Although a denial of

a motion for a new trial based on newly discovered evidence

is an appealable order, such an appeal is not a substitute

for direct appeal and can not raise issues which should have

been resolved on direct appeal. See Atkinson v. United States,

D. C. App., 366 A.2d 450, 452 (1976) ; United States v. McCord,

*The rules of this court allow the trial court to extend

the appeaP period upon a finding of excusable neglect. See

11149

Appendix - Page 26a

Brown, supra at 709-10; D.C. App. R. 4 II (b) (3). Appellant's

motion to reconsider did not request an extension of the

appeal period and stated no facts pertinent to the delay in

filing the notice of appeal. In denying the motion to recon-

sider, the trial court made no reference to any extension of

the appeal period. We decline in effect to amend the rules of

this court regarding the tolling of the appeal period, D.C.

App. R. 4 II (b) (2), by holding that a motion to reconsider

extends the appeal period under D.C. App. R. 4 II(b) (3)

without any showing of excusable neglect in filing the notice

of appeal, an express request for extension of the appeal

period, or the granting of an extension by the trial court.

Compare Stolarz, supra at 111-12 (remanded sna spowte for

determination of possible excusable neglect in delay).

In a related vein, in limited circumstances, when a party

fails to file a timely notice of appeal in reliance on a state

ment or action of the trial court indicating that the party

has timely filed a postjudgment motion that tolls the appeal

period, that motion, although in fact untimely, does stop the

running of that period. See Wolfsohn v. Hankin, 376 U.S.

203, 203 (1964) (per curiam), reversing 116 U.S.App.D.C.

127, 321 F.2d 393 (1963) (per curiam) ; Thompson v. Immi-

gration & Naturalization Servier, 375 U.S. 384, 386 (1964)

(per curiam). See generally 9 Moore's FEDERAL PRACTICE

§ 204.12[2] (2d ed. 1980). This “lulling” doctrine does not

preserve this appeal.

Although the “lulling” doctrine emerged from the civil con-

text, for present purposes we shall assume, for the sake of

argument, that it can apply to criminal cases. In Jackson

v. United States, D.C.Mun.App., 119 A.2d 721 (1956), the

court held that the trial court could not treat a postjudgment

motion filed after the expiration of the appeal period as a

notice of appeal. See id. at 722. The court reasoned that

neither the trial court nor the appellate court had the pewer

to enlarge the appeal period. Se id., Jones, supra at 196

n.4. Because Jackson, however, involved an apparently de-

liberate attempt to extend the appeal period, the case does

not necessarily foreclose the possibility that the trial court's

inadvertent error for equitable reasons could lead to an en-

largement of time for filing a criminal appeal. Sve, 5.9.

1150

Appendix - Page 27a

to go the latter route poses a problem for me.

The fact is that the trial judge did reconsider her prior

ruling in denying the motion to reconsider and vacate.

Having done so without challenge, the issue becomes, not

so much one of “lulling” or “tolling,” as one of determin-

ing what was the final order for purposes of appeal. The

record before us throws no light on the matter. Faced

with ambiguity, I would not penalize appellant by pre-

cluding jurisdiction in this court. See United States v.

Nicks, D.C.App., 427 A.2d 444 (1981). I would be re-

luctant to do so particularly in this most difficult area

where a late appearance by a lawyer has been assessed

as criminal conduct.

United States v. Wickland, 619 F.2d 75, 79-80 (Temp. Emer.

Ct. App. 1980); United States v. Cooper, 482 F.2d 1393,

1399-1400 (Temp. Emer. Ct. App. 1973).

Application of the “lulling” doctrine, however, would not

cure the defect in this case. Appellant does not contend (nor

does the record reveal) that the trial court made any repre-

sentation or acted or failed to act in any way that caused

him to miss his opportunity to appeal. In these circum-

stances, we have no basis for concluding that the judicial

system is estopped to deny the appeal on the basis of untime-

liness. See 9 MOORE’S supra § 204.12[2], at 4-73 to -76.

111511

Appendix - Page 28a

APPENDIX E

DISTRICT OF COLUMBIA

COURT OF APPEALS

No. 79-699 Filed July 20, 1981

IN THE MATTER OF:

HARRY TOUSSAINT ALEXANDER, T 14902-78

Appellant.

BEFORE: Newman, Chief Judge; Kelly, Kern,

Nebeker, Harris, Mack, Ferren and

Pryor, Associate Judges.

On consideration of appellant's petition

for rehearing en banc, and it appearing that

no judge of this Court has called for a vote

thereon, it is

ORDERED that appellant's petition for re-

hearing en banc is denied.

PER CURIAM

Copies to:

Honorable Gladys Kessler

Clerk, Superior Court

Honorable Harry T. Alexander

815 15th Street NW, #1102, 20005

Charles L. Reischel, Fsquire

Deputy Corporation Counsel

Appendix - Page 29a