Amicus Curiae Brief — Hochheiser v. United States

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No. 89-1991 tS Lin

wea « ‘uOL. JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

— ie

LAWRENCE HOCHHEISER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

BRIEF OF CENTER FOR CONSTITUTIONAL

RIGHTS AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

*MORTON STAVIS

MAHLON F. PERKINS, JR.

Center for Constitutional Rights

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6425

Counsel for Amicus Curiae

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES Va we ie ee stew ee

pe a ae a: |

REASONS FOR GRANTING THE WRIT AND

SUMMARY OF ARGUMENT ......... 5

THE COURT SHOULD SEIZE THE OPPOR-

TUNITY PRESENTED BY THIS PETITION

TO REAFFIRM THE CONSTITUTIONAL

LIMITATIONS ON THE POWER OF COURTS

TO PUNISH SUMMARILY FOR CONTEMPT

ATTORNEYS WHOSE CONDUCT HAS NOT AC-

TUALLY OBSTRUCTED THE ADMINISTRATION

OF JUSTICE . > 7 - oo * . J . . . J > 7

1. The Circumstances of the

Petitioner's Conviction .... 7

2. The Parallels to Other

Attorney Contempts ...... 14

3. Origins of the Constitutional

Limitations on the Contempt

a. - ao he a ce a tee Se « «= = ee

4. Actual Obstruction as the

Sine Qua Non for Constitutional

Exercise of the Contempt

ee s+ ¢ ewe xk ce wee ess eS

5. Constitutional Limitations in

Lawyer Contempts ....... 25

CONCLUSION ee ee ee oe ee a er ee

TABLE OF AUTHORITIES

v. Illinois,

U.S. 194 (1968) ..

Bridges v. California,

314

Brown

356

U.8. 282 (206803. .

v. United States,

U.S. 148 (1958)

Cammer v. United States,

350

U.S. 399 (1956)

Ex parte Hudgings,

249

U.S. 378 (1919)

Holt v. Virginia,

381

In re

404

In re

370

In re

326

In re

333

Nye v.

313

u.s. 1314 Ce...

Little,

U.S. 553 (1972)

McConnell,

U.8. 230 €3962) . «

Michael,

U.S. 224 (1945) .

Oliver,

v.64. 687 606 2 ee

United States,

v.86. 33 Of 3. 19,

Offutt v. United States,

11 (1954)

348

U.S.

iii

Statutes

Act of March 2, 1831, 4 Stat. 487 .. 18

18 U.S.C. § 401(1) ees «a « «© « £6, 29

Other Authorities

Stansbury, Report of the Trial of

James H. Peck on an Impeachment

for High Misdemeanors in Office

nt fe: =. . aoe + «le UR, 620, 22

BRIEF AMICUS CURIAE OF

CENTER FOR CONSTITUTIONAL RIGHTS

This brief amicus curiae is submitted

in support of the petition for certiorari

seeking review of the decision of the

United States Court of Appeals for the

Second Circuit in Lawrence Hochheiser v.

United States of America, 897 F.2d 1227

(2d Cir. 1990). Letters consenting to the

filing of this brief have been received

from the Solicitor General of the United

States, counsel for the respondent, and

from Vivian Shevitz, Esq., counsel for the

petitioner, and have been forwarded to the

Clerk of the Court under separate cover.

Interest of Amicus

The petition presents questions of

great importance for defining the consti-

tutional limitations on the summary con-

tempt power. They arise in this case out

of the summary contempt conviction of a

lawyer for a single brief outburst pro-

voked by the lawyer's frustration at the

court's refusal to let him utter one word

in his own defense against a previous

contempt citation founded on a misap-

prehendsion. This conviction for conduct

which did not come close to obstructing

the administration of justice flies in the

face of ruling precedents of this Court,

particularly In re McConnell, 370 U.S. 230

(1962), which capped a long history of

efforts to check the unbridled exercise of

the contempt power. Unfortunately, the

petitioner's plight is not an isolated

one. Herein lies the interest of the

Center.

Founded twenty-four years ago as an

outgrowth of the civil rights movement in

the South, the Center provides legal sup-

port to individuals and groups whose con-

stitutional rights have been infringed or

denied. In our work we rely not only on

our own staff attorneys but on a network

of cooperating lawyers and law professors

throughout the United States. We often

defend persons who have been prosecuted

for exercising their constitutional

rights. The causes we espouse are not

always popular. Out of our own experi-

ence we know how important it is that a

lawyer be free to defend his clients with

vigor, even vehemence, without having to

fear that he may be held in contempt if an

excess of zeal leads him to overstep the

bounds of courtroom propriety.

Because our own attorneys and coop-

erating attorneys have from time to time

been held in contempt, we are sensitive to

the dangers that an untrammeled contempt

power presents for our own work and that

of other public interest organizations

which seek to defend and enlarge constitu-

tional rights. Over the years we have

successfully defended lawyers in a number

of contempt cases and related disciplinary

cases, among them In the Matter of Pils-

bury, 866 F.2d 22 (2nd Cir. 1989); United

States v. Turner, 812 F.2d 1552 (11th Cir.

1987); In re Dellinger, 461 F.2d 389 (7th

Cir. 1972); Matter of Hinds, 90 N.J. 604

(1982). We are currently representing a

professor of law at the University of

North Carolina in his appeal of a criminal

contempt conviction in a North Carolina

state court. In the Matter of Barry Na-

kell, North Carolina Court of Appeals, No.

89 GO 848. We are also consulted from

time to time in other lawyer contempt

cases. We were, for example, requested to

submit an amicus brief in this Court in

support of the petition in In the Matter

of James B. Daniels v. Superior Court of

the State of New Jersey, Docket No. 89-

1972, and have recently filed a Motion for

Leave to File and Brief Amicus Curiae in

that case.

This special experience has led us to

conclude that the teachings of McConnell

are being widely forgotten or ignored,

with devastating consequences for the

constitutional rights of lawyers and their

clients, and explains our interest in sub-

mitting this amicus brief as well as the

amicus brief in Daniels.

REASONS FOR GRANTING THE WRIT

AND SUMMARY OF ARGUMENT

The petitioner, Lawrence Hochheiser, a

New York criminal defense attorney, was

summarily convicted in federal district

court of criminal contempt of court, with-

out any opportunity to present evidence in

his own defense, for a single brief out-

burst in protest at the court's refusal to

let him respond to an immediately previous

contempt citation. Although his conduct

did not obstruct, or imminently threaten

to obstruct, the administration of jus-

tice, the court of appeals, while revers-

ing the first contempt conviction, af-

firmed the second on the ground that the

petitioner's conduct affronted the dignity

of the court. Such a basis for isposing

contempt does not comport with the con-

stitutional requirements for exercise of

the summary contempt power as laid down by

this Court in In re McConnell, 370 U.S.

230 (1962), In e ittle, 404 U.S. 553

(1972), and many other cases. Permitting

a disrespectful utterance, without more,

to be grounds for contempt puts a damper

on fearless advocacy by attorneys and

diminishes the Sixth Amendment rights of

their clients.

We point out that the facts and cir-

cumstances of this case parallel those of

other lawyer contempt cases in which the

Center has been involved in representing

or counseling attorneys held summarily in

contempt. McConnell and Little are the

culmination of a long historical struggle

to limit the arbitrary power of judges to

convict summarily without the ordinary due

process safeguards. We fear that their

teachings are now too often forgotten, and

suggest that this petition and the peti-

tion in Daniels present an exceptional

opportunity to reestablish needed limita-

tions on the contempt power.

ARGUMENT

THE COURT SHOULD SEIZE THE OPPORTUNITY

PRESENTED BY THIS PETITION TO REAFFIRM THE

CONSTITUTIONAL LIMITATIONS ON THE POWER OF

COURTS TO PUNISH SUMMARILY FOR CONTEMPT

ATTORNEYS WHOSE CONDUCT HAS NOT ACTUALLY

OBSTRUCTED THE ADMINISTRATION OF JUSTICE

1. The Circumstances of the Petitioner's

Contempt Conviction

The petitioner, Lawrence Hochheiser,

was convicted in the course of a long

criminal trial for uttering a mere ten

words: "I won't pay. You can put me in

jail, Judge." This spontaneous outburst

followed on the heels of the judge's refu-

sal to permit him to defend himself

against a previous citation of contempt

for what she had characterized as "deli-

berately" disobeying her ruling against

the introduction of a police surveillance

report. In two state court trials for the

murder of a plain clothes police officer

and attempted murder of his companion,

Hochheiser's client, Federico Giovanelli,

together with two codefendants, had either

been acquitted, or the jury had failed to

agree on a verdict. They were then in-

dicted under RICO, with the murder and

attempted murder among the underlying

crimes. Critical to Giovanelli's defense

in the federal trial was the credibility

of the eyewitness testimony of an FBI

agent, who had refreshed his memory of

observations made four years earlier by

studying a surveillance log. When Hoch-

heiser, in the course of his cross-ex-

amination of the agent, offered the log in

evidence as past recollection recorded,

the judge erroneously refused to receive

it. Hochheiser continued his efforts to

impeach the agent's credibility by deter-

mining what part of his testimony was

based on actual recall and what part was

based on studying the log. Mistakenly

believing that Hochheiser was attempting

to lay a foundation for another offer of

the log in evidence, the judge twice tried

to cut him short. When he persisted, she

excused the jury and fined him $250 for

"deliberately disobeying [her] direction

with regard to the introduction of that

document." This was the first contempt

sanction.

When Hochheiser tried to explain that

he was not deliberately doing anything,

the judge stopped him cold, saying:

I'm not going to hear any more.

There is only one way to bring law-

yers into line, and that's to fine

them. Before this trial is over,

you may be paying a big bill in

fines.

She ordered the jury brought in. It was

at this moment, as the jury began to file

in behind him from the rear of the court-

room, that Hochheiser erupted with the ten

words that swiftly drew an additional fine

of $500. The judge accused him of delib-

erately saying these words in the presence

of the jury and refused to accept his

statement that he did not know the jury

were behind hin.’

In her Rule 42(a) Cer-

tificate, the judge accused Hochheiser of

"deliberately trying to bring about a

' Hochheiser never had an opportunity

to present the testimony of others in the

courtroom in support of the truthfulness

of this statement.

mistrial" (Pet. App. at 20a-21la), a

ceéinid aiaeiuiadl which he could hardly de-

fend himself since it was not made prior

to his conviction.®

The facts demonstrate that the behavior

for which the second fine was’ imposed

cannot be considered apart from Hoch-

heiser's stubborn efforts on behalf of his

client. They indicate that his momentary

explosion of anger, however improper and

however offensive to the trial judge, was

not calculated to disrupt the trial or

otherwise obstruct or imminently threaten

to obstruct the administration of justice,

and did not in fact do so. It clearly

sprang from his feelings of frustration at

the court's adamant refusal, based on a

misunderstanding of the tenor of his ques-

¢ The judge later accused the attor-

neys for the defendants of being in a

"contempt plot" as a tactic to bring about

a mistrial.

tions, to let him pursue a crucial line of

cross-examination of a dangerous witness,

capped by her citing him for contempt

without allowing him a word of explana-

tion.

In affirming petitioner's conviction on

the second contempt, the Court of Appeals

relied principally on notions of "dis-

respect" and "affront to the dignity of

the court." Pet. App. at lla-12a. The

opinion states:

Words of reproach directed in open

court to a judge's order must be

dealt with swiftly and firmly, since

to allow such conduct to go unsanc-

tioned risks the serious erosion of

the court's authority to control the

proceedings before it.

Pet. App. at 3a. This generality hardly

fits the case of an isolated and trans-

itory outburst in 2 trial as to which the

Court of Appeals itself noted its "hotly

contested nature" and the "severity of the

charges" against the defendants. Id. at

4a. In any event, a mere "risk" of ero-

sion of a court's authority does not pre-

sent an imminent threat of obstruction,

let alone an actual obstruction, to the

administration of justice, --- the con-

stitutional minimum for the exercise of

the summary contempt power. At the close

of its opinion, the Court does state that

the misbehavior "required" the jury to

retire once again and "in that way" ac-

tually obstructed the administration of

justice. This is no more than a per-

functory recitation of the statutory for-

; The Court states that the trial

judge's finding that Hochheiser was aware

when he spoke that several members of the

jury were in the back of the courtroom is

"persuasive." Pet. App. at 12a. Given

the circumstances, it seems at best inm-

probable; in any event, a persuasive find-

ing is not a finding established beyond a

reasonable doubt, the standard for a crim-

inal conviction. The opinion does not

allude to the judge's baseless finding

that Hochheiser deliberately attempted to

bring about a mistrial.

mula, a rationale that could be used to

justify any judge's overreaction to an

attorney's behavior. Plainly, it is

"disrespect" that is at the core of the

opinion, a standard that is constitution-

ally defective.

2. The Parallels to Other Attorney

Contempts

The Hochheiser contempt conviction pre-

sents features that are found in a number

of other attorney contempt cases in which

the Center has been involved.

Jeopardy of Client. The attorney is

faced with an adverse ruling which in-

perils the cause of his client and which

he believes to be erroneous as a matter of

law or based on a misunderstanding of the

facts. This causes him to exceed the

bounds of decorum in his efforts to over-

come the ruling, arousing the judge's ire.

Gross Blunder by the Court. Sometimes

the court takes a position that appears

so unjustifiable to the attorney that he

involuntarily lets his frustration show in

a manner that offends the judge. This

happened to Hochheiser, confronted in

succession not only with adverse rulings

that could emasculate the defense but a

contempt citation to which he could not

respond.

Court's Perception of "Body Language."

An overly sensitive judge reads into an

attorney's demeanor, facial expression or

tone of voice an intent to insult or mock

the court, even where the content of the

attorney's language has been uniformly

respectful, or it is clear that the attor-

ney's misbehavior is not calculated, but a

momentary lapse. - The court dismisses any

apology or explanation. Irn the present

case, the trial judge kept imputing a

"deliberate" character to Hochheiser's ac-

tions without any apparent basis.

Court's Bias Against Party. The judge

exhibits antagonism to the attorney's

client because of the nature of the of-

fense with which he is charged or the

rights he is seeking to enforce. This an-

tagonism may then be transferred to the

attorney, a transfer that may readily oc-

cur when a rambunctious defendant engages

in courtroom antics. The judge's hos-

tility in the present case was displayed

by her intimidation of the lawyers with

threats of escalating fines, conveyed in

harsh language.

Disruption Caused by Court. The court

proceedings are unnecessarily interrupted

by a judge who takes umbrage at what he

perceives to be disrespect by the attor-

ney and orders his ejection from the

courtroom or pronounces summary contempt.

The attorney does not intend or foresee

such an interference with the orderly

administration of justice and should not

be held accountable therefor.

We recognize that there have been in-

stances when a lawyer has deliberately and

repeatedly provoked the court in order to

gain the attention of the press or create

grounds for a mistrial. Such behavior is

plainly punishable as an obstruction to

the administration of justice. Not so,

conduct which erupts in the tense atmo-

sphere of a trial where the attorney is

simply doing his utmost to protect the

interests of an endangered client.

3. Origins of the Censtitutional Limita-

tions on the Contempt Power

The contempt power of a federal court

is limited by statute, in the case of

conduct taking place before it, to "mis-

behavior of any person in its presence or

so near thereto as to obstruct the ad-

ministration of justice." 18 U.S.C.

§ 401(1). This restriction is rooted in

constitutional considerations that arose

in the impeachment trial of James H. Peck,

a federal district judge who had in-

prisoned a iawyer for publishing a criti-

cism of one of his opinions in a case on

appeal. Judge Peck was acquitted by a

Single vote after a trial that continued

over a period of almost two months.* The

day after his acquittal Congress’ took

steps to provide for a drastic delimita-

tion of the federal contempt power. With-

in a few days James Buchanan, the prin-

cipal manager of the case against Peck

(and aftervarée elected President),

brought in a bill that became the Act of

March 2, 1831, 4 Stat. 487. This Act,

* The trial is reported in full in

Stansbury, Report of the Trial of James H.

I wr . a a

demeanors in Office (1933).

“declaratory of the law concerning con-

tempts of court," confined the summary

contempt power, inter alia, to misbehavior

"in the presence of said courts, or so

near thereto as to obstruct the ad-

ministration of justice," -- language al-

most identical with that now found in

18 U.S.C. § 401(1). See, Nye v. United

States, 313 U.S. 33, 44-46 (1941).

The arguments by Buchanan and other

managers of the case against Peck demon-

strate that their passionate opposition to

the broad contempt powers urged by those

charged with Peck's defense sprang from

their conviction that such powers con-

travened the principles for which the Rev-

olution was fought and threatened liber-

ties guaranteed by the Constitution. Con-

stitutional concerns were at the heart of

the impeachment proceedings and the legis-

lation that ensued.

The arguments of the managers against

untrammeled powers of summary contempt

reflect concerns that persevere to this

day: the lack of ordinary due process

with the concentration of all powers in

the judge; the absence of any clear stan-

dard; dependence on the temperament of the

judge. As expressed by Buchanan: "the

dearest rights of a citizen may be taken

away without trial by jury, and by the

sole authority of an angry, offended, and

therefore partial judge." Stanbury, op.

cit., at 445-46. The managers recognized

the "plea of necessity," the right of a

court to preserve its own functioning;

but, as stated by M'Duffie, this plea must

be "pleaded in good faith, and clearly

made out. It must be a case of actual

necessity, obvious to the common sense of

every impartial person. The administra-

tion of justice must be actually obstruct-

ed." Id., at 87. The managers were un-

animous that this was a constitutional

minimum.

4. Actual Obstruction as the Sine Qua Non

for Constitutional Exercise of the

Contempt Power

Seventy years ago, in Ex parte Hudg-

ings, 249 U.S. 378 (1919), this Court, in

overturning the contempt conviction of a

witness for perjury, enunciated the prin-

ciples that set constitutional boundaries

to the contempt power. It held that the

existence of this power expressed no pur-

pose to exempt judicial authority from

constitutional limitations, since “its

great and only purpose" is to secure judi-

cial authority from obstruction to the

performance of its duties:

An obstruction to the performance of

judicial duty resulting from an act

done in the presence of the court

is, then, the characteristic upon

which the power to punish for con-

tempt must rest.

249 U.S. at 383.

In a number of later cases this Court

has plainly read the statutory requirement

of actual obstruction as a constitutional

limitation deriving from the Peck trial.

Nye v. United States, supra; In re Mi-

chael, 326 U.S. 224, 227 (1945); Cammer v.

United States, 350 U.S. 399, 406 (1956).

In Bridges v. California, 314 U.S. 252

(1941), this Court struck down, as viola-

tive of the First Amendment, the power of

a judge to punish publications as con-

tempts on a finding of "a mere tendency"

to interfere with the orderly administra-

tion of justice in a pending case. Re-

viewing the "celebrated case of Judge Pec-

k," the Court concluded:

But we do find in the enactment [of

the Act of 1831] viewed in its his-

torical context, a respect for the

prohibitions of the First Amend-

ment, not as mere guides to the

formulation of policy, but as com-

mands the breach of which cannot be

tolerated.

314 U.S. at 267.

Bridges demonstrates that the limi-

tation of the contempt power to actual

obstruction serves to protect, among oth-

er rights, the First Amendment right of

free expression which, under the Four-

teenth Amendment, binds the states. In In

re Oliver, 333 U.S. 257, 275 (1948), this

Court reversed a Michigan contempt con-

viction for failure to meet due process

safeguards, stating that the narrow ex-

ception to such due process requirements

includes only charges of misconduct, in

open court in the presence of the judge,

which disturbs the court's business and

where "immediate punishment is essential

to prevent 'demoralization of the court's

authority ... before the public.'"

In a multitude of cases this Court has

shown its continuing sensitivity to the

potential for abuse which resides in the

summary power of contempt. The vulner-

' ability of the judge is a frequent theme.

In Bloom v. Illinois, 391 U.S. 194, 202

(1968), which extended the constitutional

guarantees of jury trial to state prosecu-

tions for serious criminal contempts, this

Court commented:

Contemptuous conduct, though a pub-

lic wrong, often strikes at the most

vulnerable and human qualities of a

judge's temperament.

Again, in Offutt v. United States, 348

U.S. 11, 13 (1954), remanding a contempt

oututae for a second hearing by anoth-

er judge because the trial judge had be-

come personally embroiled with counsel for

the defendant, this Court said:

The power thus entrusted to the

judge [to punish without the for-

malities required by the Bill of

Rights] is wholly unrelated to his

personal sensibilities, be they

tender or rugged. But judges are

human, and may, in a human way,

quite unwittingly identify offense

to self with obstruction of law.

cf. Brown v. United States, 356 U.S. 148,

153 (1958), where this Court warned trial

judges against "confusing offense to their

sensibilities with obstruction to the ad-

ministration of justice."

5. Constitutional Limitations in Lawyer

Contempts

The danger of confusing perceived of-

fense with actual obstruction looms large

when confrontations arise between judge

and lawyer over disagreement on the

judge's rulings. Here not only First

Amendment and due process considerations

come into play, but also the need to give

uninhibited effect to the Sixth Amendment

right of a criminal defendant to assis-

tance of counsel. In such situations this

Court has required a clear showing of ac-

tual obstruction of justice. In re McCon-

nell, 370 U.S. 230 {1962). The lawyer in

this case, after being instructed by the

judge in the presence of the jury to refr-

ain from repeatedly asking questions on

certain subjects which the court had ruled

were not admissible, persisted in assert-

ing his right to ask the questions and

announced that he "propose[d] to do so

unless some bailiff stops us." After a

short recess requested by his co-counsel,

the lawyer did not continue to ask the

forbidden questions. In reversing his

conviction for contempt, this Court said:

The arguments of a lawyer in pre-

senting his client's case strenuous-

ly and persistently cannot amount to

a contempt of court so long as the

lawyer does not in some way create

an obstruction which blocks’ the

judge in the performance of his

judicial duty. The petitioner cre-

ated no such obstacle here.

3760 U.S. at 236. Cf. Holt v. Virginia,

381 U.S. 131 (1965) (reversing on Sixth

Amendment grounds the conviction of a law-

yer for using "vile, contemptuous or in-

————————— oe

sulting language" in violation of the Vir-

ginia contempt state; In re Little, 404

U.S. 553, 555 (1972) (pro se criminal def-

endant in state court "clearly entitled to

as much latitude in conducting his defense

as enjoyed by counsel vigorously espousing

a client's cause").

There was no clear showing in this

case that Mr. Hochheiser actually obstruc-

ted or imminently threatened to obstruct

the administration of justice. His case

displays many of the features catalogued

by Buchanan and his confreres as leading

to dangerous oppression when the contempt

power is untrammeled: a lawyer unable to

mask his involuntary feeling that the

judge's ruling was absurd, judicial hos-

tility, the susceptibility of the judge,

the offended judge as sole arbiter of the

offense imposing punishment before "his

resentment should have time to cool," con-

struing the lawyer's actions as deliber-

ately disrespectful unheeding of his dis-

avowals. A judge may not constitutionally

be permitted to "carry the standard in his

own breast."

We respectfully suggest that this peti-

cion presents an exceptional opportunity

for the Court to reassert the constitu-

tional limitations on the exercise of the

summary contempt power and thereby provide

much needed guidance both to the federal

courts and the courts of the fifty states.

we suggest, also, that the Court likewise

agree to hear the petitioner in In re

James B. Daniels v. Superior Court of the

State of New Jersey, Docket No. 89-1972,

which presents similar issues of lawyer

contempt, and that it consider the two

petitions jointly.

CONCLUSION

For the reasons stated, we respect-

fully urge that the petition be granted.

Respectfully submitted,

*MORTON STAVIS

MAHLON F. PERKINS, JR.

Center for Constitutional

Rights

666 Broadway, 7th Floor

New York NY 10012

(212) 614-6425

ATTORNEYS FOR AMICUS CURIAE

*Counsel of Record

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.