Opposition Brief — Nakell v. Attorney General

In the

Supreme Court of the United States

i

QUESTIONS PRESENTED

WHETHER PETITIONER’S HABEAS ACTION IS

MOOT DUE TO EXPIRATION OF HIS 10-DAY

JAIL SENTENCE AND ABSENCE OF LEGAL

COLLATERAL CONSEQUENCES?

WHETHER PETITIONER’S SUMMARY CON-

TEMPT OF COURT PROCEEDING BEFORE

JUDGE LAKE WAS CONSISTENT WITH DUE

PROCESS?

WHETHER EVIDENCE WAS SUFFICIENT TO

SUPPORT PETITIONER’S CONVICTION FOR

DIRECT CRIMINAL CONTEMPT OF COURT?

WHETHER PETITIONER’S HABEAS ACTION IS

TEAGUE BARRED?

il

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ill

TABLE OF CONTENTS

bobo ye @ | oy) © ) i

pp ee ss 6 oy |. Vii

EO A ]

REASONS WHY THE WRIT

SHOULD NOT BE GRANIED.............. 9

I. PETITIONER’S FEDERAL HABEAS

ACTION IS MOOT DUE TO EXPI-

RATION OF HIS 10-DAY JAIL

SENTENCE AND ABSENCE OF

LEGAL COLLATERAL CONSE-

a a ee 9

Il. THE DECISION OF THE COURT

OF APPEALS FINDING

PETITIONER’S SUMMARY CON-

TEMPT PROCEEDING SATISFIED

DUE PROCESS WAS CORRECT

AND CONSISTENT WITH

MAYBERRY V. PENNSYLVANIA AND

pe ee 12

A. JUDGE LAKE’S DECISION TO

CONTINUE THE SUMMARY

CONTEMPT HEARING FOR FOR-

TY-EIGHT HOURS TO AFFORD

NAKELL AN OPPORTUNITY TO

OBTAIN COUNSEL WAS CONSIS-

TENT WITH DUE PROCESS ...... 13

Il.

IV.

iV

B. JUDGE LAKE WAS NOT "PER-

SONALLY EMBROILED" WITH

Ok eee rae rere ee ee

oe JUDGE LAKE DID NOT BECOME

PERSONALLY EMBROILED WITH

NAKELL BY REQUESTING THE

LAWYERS AND COURT REPORT-

ER TO PROVIDE AFFIDAVITS

DESCRIBING WHAT THEY OB-

D. JUDGE LAKE’S STATEMENT TO

A REPORTER DID NOT INDICATE

IMPERMISSIBLE PREJUDGMENT

OF NAKELL’S GUILT .....-----

THE COURT OF APPEALS’ DECI-

SION FINDING SUFFICIENT EVI-

DENCE TO SUPPORT NAKELL’S

CONVICTION IS CORRECT AND

CONSISTENT WITH IN RE

MCCONNELL AND THE NINTH

CIRCUIT OPINION IN

GREENBERG .....----:-- Seer

PETITIONER’S HABEAS ACTION

IS TEAGUE BARRED ....-.-.---::-

seandhig Coes alate

CONCLUSION

APPENDIX

JUDGE LAKE’S FINDINGS OF FACT

AND CONCLUSIONS OF LAW ENTERED

IN SUPERIOR COURT OF ROBESON

COUNTY ON NOVEMBER 16, 1989

(TRANSCRIPT PAGES 95-102) ........... la

JUDGE LAKE’S COMMENTS BEFORE

ENTERING HIS FINDINGS OF FACT

AND CONCLUSIONS OF LAW IN

SUPERIOR COURT OF ROBESON

COUNTY ON NOVEMBER 16, 1989

(TRANSCRIPT PAGES 92-95) ........... Ta

vil

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TABLE OF AUTHORITIES

Blankenburg v. Commonwealth, 272 Mass. 25,

172 N.E. 209 (1930), cert. denied, 283 U.S. 819,

51S. Ct. 344, 75 L.. Bd. 1435 (1931) ... 1...

Broughton v. North Carolina, 717 F.2d 147

(4th Cir. 1983), cert. denied, 466 U.S. 940, 104,

S. Ct. 1917, 80 L. Ed. 2d 464 (1984) .......

Butler v. McKellar, 494 U.S. 407, 110 S. Ct. 1212,

gee 6 rr

Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556,

eG re ae

Caspari v. Bohlen, _U.S. ___, 114S. Ct. 948,

ES es re

Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153,

25 L. Ed. 2d 491 (1970)

re. eC. 8 @ @ 2-8 82 2 Se

Dremann v. Francis, 828 F.2d 6 (9th Cir. 1987)

New York, 390 U.S. 629, 88 S. Ct. 1274,

2d 195 (1968)

Ginsburg v.

Re rr re

Hanson v. Circuit Court of First Judicial Circuit,

591 F.2d 404 (7th Cir. 1979), cert. denied, 444 US.

907, 100 S. Ct. 220, 62 L. Ed. 2d 143 (1979)

In re McConnell, 370 U.S. 230, 82 S. Ct. 1288,

8 L. Ed. 2d 434 (1962)

1]

1]

10

Vill

In re Nakell, 104 N.C. App. 638, 411 S.E.2d 159

(1991), appeal dismissed and discretionary

review denied, 330 N.C. 851,

413 S.E.2d 556 (1992). ee tt

In re Rogers, 297 N.C. 48, 253 S.E.2d 912

ON ais ks Sle re eee

In re Union Leader Corp., 292 F.2d 381 (ist Cir.),

cert. denied, 368 U.S. 927, 82 S. Ct. 361,

Co” om BL). ee

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,

91 L. Ed. 2d 560 (1979) ..------ settee?

Lane v. Williams, 455 U.S. 624, 102 S. Cy. 1358,

71 B.. id. 246 SOB (19GZ) ww tte

Liteky v. United States, __ U.S. __. 114 S. Ct. 1147,

127 L. Ed. 2d 474 (1994) ..---- ee ere

Matter of contempt of Greenberg, 849 F.2d 1251

I TOD ko 8 on eae eee

Mayberry v. Pennsylvania, 400 U.S. 455,

91 S. Ct. 499, 27 L. Ed. 2d 532

1) eee eo 15, 16, 17, 18,

Nakell v. Attorney General of North Carolina,

15 F.3d 319 (4th Cir. 1994) ..-.-----

Paul v. Pleasants, 551 F.2d 575 (4th Cir.),

cert. denied, 434 U.S. 908, 98 S. Ct. 310,

54 L. Ed. 24 196 (1977). ee ee et

10

17

nN

Ww

nN

nN

1X

Port v. Head, 764 F.2d 423 (Sth Cir. 1985) ..... 12

Richmond Black Police Officers Association v. Richmond,

ue Fae bee ee Te i ee ee we 11

Sacher v. United States, 343 U.S. 1, 72 S. Ct. 451,

_ 2 Fb er rare. 8, 13, 14, 19

Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257,

oe Fl re er aera 27

Schiro v. Farley, _U.S.__, 114 S. Ct. 783,

ee es ee ee Cg Se eo ee ab es 26

Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889,

ye fo a eee 10

Spring v. Caldwell, 692 F.2d 994 (Sth Cir. 1982),

rehearing denied, 697 F.2d 1092 (1983) ...... 11

State v. Hatcher, 326 N.C. 52,

CB 1,3

Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697,

41 L. Ed. 2d 897 (1974) ........ 15, 16, 18, 19

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060,

oe ee ee ee ree 9

Tinder v. Paula, 725 F.2d 801 (1st Cir. 1984) ... 11

Ungar v. Sarafite, 376 U.S. 575, 84S. Ct. 841,

11 L. Ed. 20d S21 (1964) .. i... 8, 13, 14, 15, 21

. 4

a

United States v. Meyer, 462 F.2d 827

a | eae ae ae ae ee a

United States v. Michaud, 901 F.2d 5

i a A... Sere RSA Arwen a eae

Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976),

cert. denied, 434 U.S. 825, 98 S. Ct. 72,

at. Oa MRAG 2.2. oe ee

Wi ght v. West, 505 U.S. __, 112 S. Ct. 2482,

120 L. Ed. 2d 225 (1992) «0 cc we ee ai

STATUTES

28 U.S.C. 8 455) CRD ww i ct he ee ees

yp ie ome wen 0). 5

2OUG.C. SOR GIP nw wc eee eee

N.C. GEN. STAT. § 5A-11 (1986) .......-.-.--

N.C. GEN. STAT. § 5A-13 (1986) .........-.--

N.C. GEN. STAT. § 5A-14 (1986) ........-...

N.C. GEN. STAT. § 9-3 (1986) ......--005-

N.C. GEN. STAT. § 15A-1340.4

(Cum. Sepp. 1505) 0 eens

N.C. GEN. STAT. § 84-4.1 (1985) ........-...

N.C. GEN. STAT. § 163-55 (1991) .......

1]

27

XI

CONSTITUTIONS

Xil

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No. 94-8

In the

Supreme Court of the United States

October Term, 1994

BARRY NAKELL,

Petitioner,

Vv.

ATTORNEY GENERAL OF

NORTH CAROLINA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION

STATEMENT

On November 14, 1989, a pretrial hearing was held

in the Superior Court of Robeson County, North Carolina,

before Honorable I. Beverly Lake, Jr., in State v. Eddie

Hatcher, in which Hatcher was charged with multiple felony

counts of second-degree kidnapping. Judge Lake noted

previous orders entered by other superior court judges. The

first order, entered January 26, 1989 by Honorable Anthony

M. Brannon, appointed the Public Defender, Angus

Thompson, to represent Hatcher. The second order, entered

September 5, 1989, by Honorable Robert L. Farmer, held

2

out-of-state attorneys, William N. Kunstler and Ronald L.

Kuby, had not complied with N.C. GEN. STAT. § 84-4.1

(1985) governing out-of-state counsel, had never been

admitted to practice pro hac vice and had not acquired

eligibility to appear on behalf of Hatcher. The third order,

entered September 6, 1989, by Judge Farmer found Hatcher

had dismissed "the Public Defender as his attorney; and that

when asked by the court if he wished to represent himself,

the Defendant did not answer yes." The order stated the

Public Defender was counsel for Hatcher "until the court

receives in writing from the Defendant a statement that he

plans to represent himself and does not wish to have the

services of the Public Defender or that he has retained

counsel licensed in North Carolina along with their name and

address and a notice of a general appearance filed by said

attorney with the Court."

The final order, entered October 16, 1989 by Judge

Farmer arose upon motions that three out-of-state attorneys

be allowed to represent Hatcher pro hac vice. The court

concluded § 84-4.1 had not been complied with and "the

Court is without power to allow or reject the applications or

motions by the said out-of-state attorneys to appear in this

case." The court ordered "the Public Defender of Judicial

District 16-B is still counsel of record for the Defendant."'

' Respondent does not concede Judge Farmer’s orders

were illegal. Furthermore, the Supreme Court of North

Carolina did not "vindicate" Petitioner’s position with regard

to the orders. The court simply vacated without comment

’ (continued...)

3

The pre-trial hearing of November 14, 1989, began

with Judge Lake noting for the record the aforementioned

orders. The court also had before it a motion by defendant

Hatcher to proceed pro se and a motion for reconsideration

for the out-of-state attorneys to appear in the case on behalf

of Hatcher. The motion for reconsideration also requested

the court to "clarify the status of Mr. Barry Nakell,

requesting that he be permitted to enter a limited appearance

in the case." Judge Lake responded:

The Court has considered that in light of the

referenced order of September 6 of 1989 by Judge

Farmer which Judge Farmer specified that any

appearance must be a general appearance filed by an

attorney on behalf of the defendant.

Nakell, who had entered the courtroom during the

proceedings and tendered a notice of limited appearance to

the clerk, interrupted the court and asked to be heard. Judge

Lake said "[nJo, [sJir, not at this point." Nakell interrupted

again and Judge Lake informed him his notice of limited

appearance was not in compliance with Judge Farmer’s

September 6 order. Nakell continued and Judge Lake told

him "{njo, [sJir, Mr. Nakell, I’m not going to hear you."

When Nakell continued to talk Judge Lake responded "I said

I’m not going to hear you. Sit down. Sit down." The court

then asked Nakell "[dJo you want to be removed from this

courtroom?" Nakell continued to talk and again Judge Lake

'(,. continued)

and allowed the trial court to start over again. State v.

Hatcher, 326 N.C. 52, 389 S.E.2d 100 (1990).

4

told him "I said sit down, Mr. Nakell. That’s a direct order

from the Court."

When Nakell continuea to speak, Judge Lake said

"{djo you want to be held in direct criminal contempt of this

Court?" At that point, Hatcher blurted obscenities and

Nakell continued to speak. Judge Lake responded "I am

directing you specifically to sit down and be quiet." A few

minutes later Nakell spoke and Judge Lake told Nakell "I’m

going to direct you not to interrupt me now. If you want to

_. . pose a question to the Court, you do so through Mr.

Thompson." Nakell refused to comply and Judge Lake said

"(t]he Court does not recognize your representation of this

defendant." Finally, Judge Lake said "[w]ell, let me see if

I can make you understand, Mr. Nakell. I am denying your

request for a limited appearance on behalf of this defendant

and I’m directing you to sit down and be quiet and not say

another word to the court except if you want to say

something, do it through Mr. Thompson." Then, without

sitting down, Nakell turned to Mr. Thompson and in the

same tone of voice used to address the court, said, “[aJll

right. Mr. Thompson, would you inquire about the basis -

legal basis for a licensed North Carolina attorney from

appearing on behalf of a defendant in a criminal case in

association with a public defender -". Judge Lake tried to

interrupt Nakell and Hatcher blurted obscenities while Nakell

continued to talk. At this point, Judge Lake ordered the

bailiff to remove Nakell from the courtroom. Haicher then

threw two pens at the bench, blurted more obscenities and

was removed from the courtroom. Later, Hatcher was

returned gnd the proceedings continued.

5

At the conclusion of the pre-trial motions hearing,

Nakell was brought back into the courtroom and advised of

the specific conduct considered to be in direct criminal

contempt of court: (1) refusal to sit down after a direct

order to do so; (2) refusal to be quiet after a direct order to

do so; (3) continual interruption of the presiding judge by

speaking over the voice of the court; (4) disrupting the court

proceedings; (5) unduly prolonging the court proceedings;

and (6) pandering to the courtroom audience, and

encouraging Hatcher to be disruptive of the court. Judge

Lake continued the matter for further consideration to

November 16, 1989. Prior to the November 16 hearing,

Judge Lake requested attorneys and other courtroom

personnel who were present during the hearing of November

14, 1989 to provide affidavits describing their observations.

At the November 16 hearing, Nakell, through his attorney,

requested the matter be continued so as to place it before

another judge. Judge Lake denied the request noting the

contempt proceeding was a continuation of the matter on

November 14, 1989, which "could have been summarily

adjudicated and determined by the Court at that time." But

in deference to Nakell was continued until November 16,

1989.

Assistant Public Defender Neil Webber testified that

when Nakell was ordered to communicate to the court only

through Mr. Thompson, Nakell turned toward Thompson and

spoke to him in a voice loud enough for Webber to hear.

Mr. Webber was seated on the second row of the audience

behind the defense table. The tone of Nakell’s voice "was

loud enough that I could hear it . . . [a]nd he certainly

6

wasn’t whispering." "It was vocal, and I could hear his

voice the entire time." Public Defender Angus Thompson

testified he did not feel Nakell was trying to disrupt the

proceeding, "[nJevertheless, after repeatedly being told to sit

down, and, of course, on one occasion being told to speak to

me, [Nakell] again arose and began addressing the court."

Mr. Thompson also stated that pursuant to the court’s

instructions to Nakell on November 14, 1989, he would have

"turn[ed] and probably in a lower voice communicate[d] with

"

counsel, ....

Nakell testified he did not intend to disrupt the

proceedings. He said he was aware of the orders of

September 5 and 6, 1989 entered by Judge Farmer. Nakell

admitted it was clear to him "the Court was ruling that I

should not appear in the case." In addition, Nakell testified,

"I understand that you [Judge Lake] wanted me not to

address the Court directly, but that I could participate in the

proceedings through Mr. Thompson." Nakell stated, "I

looked at Mr. Thompson and spoke to him in a voice that

was loud enough that I thought he - he could hear. It may

well be that it could be heard by others as well." At that

point Nakell "heard some applause." Nakell "suppose[d]"

the applause was in.direct response to his statement to Mr.

Thompson.

District Attorney Richard Townsend testified Nakell

entered the courtroom during on-going proceedings, handed

him a copy of his notice of limited appearance, and

attempted to address the court. The court indicated it would

not hear him at that time but Nakell continued to interrupt

oa ak at PS Al Sal AT AE ea NIE

ee ee es

7

and was told to sit down and be quiet. The court said it was

not recognizing Nakell’s appearance and on one occasion the

public defender, Mr. Thompson, even asked Nakell to sit

down and be quiet. The court warned Nakell about contempt

and finally told him if he had any questions to ask them

through Mr. Thompson. At that point, ". . . Nakell, who

was still standing, turned and looked at Mr. Thompson and

in the same voice he had - was addressing the Court,

addressed Mr. Thompson to inquire - or make the same

inquiry that Mr. Nakell had just made to the Court." At that

point, there was applause from Hatcher’s supporters in the

audience and the court instructed the bailiff to remove Nakell

from the courtroom. At the conclusion of the summary

contempt hearing Judge Lake entered lengthy findings of fact

and conclusions of law. (App 1a) Whereupon, Judge Lake

found Nakell guilty of direct criminal contempt of court and

sentenced him to ten days in jail and a $500.00 fine.

Petitioner appealed to the North Carolina Court of

Appeals which found no error on December 17, 1992. In re

Nakell, 104 N.C. App. 638, 411 S.E.2d 159 (1991), appeal

dismissed and discretionary review denied, 330 N.C. 851,

413 S.E.2d 556 (1992). The court found evidence sufficient

to support the conviction and held the summary contempt

proceeding complied with due process. The court also held

the requirement of N.C. GEN. STAT. § 5A-14 (1986) that a

summary contempt proceeding be conducted "substantially

contemporaneously" with the contempt was satisfied even

though the on-going proceeding was continued for forty-eight

hours. Nakell, 104 N.C. App. at 649, 411 S.E.2d at 165.

The Supreme Court of North Carolina dismissed Petitioner’s

8

appeal and denied discretionary review on January 30, 1992.

Petitioner then filed an application for federal habeas

relief in the United States District Court for the Eastern

District of North Carolina. Honorable Malcolm J. Howard

denied the petition on February 25, 1992. Judge Howard

found evidence sufficient to support Petitioner’s conviction

and held the contempt proceeding complied with due process.

"This court is convinced that justice and fairness did prevail

throughout these proceedings and Petitioner was afforded

every due process right." The United States Court of

Appeals for the Fourth Circuit, Chief Judge Ervin presiding,

affirmed the district court decision on January 27, 1994.

Nakell v. Attorney General of North Carolina, 15 F.3d 319

(4th Cir. 1994). Rehearing was denied on March 4, 1994.

Although the Court of Appeals rejected Respondent's

argument that Petitioner's case became moot upon

completion of his ten-day jail sentence, the Court of Appeals

found sufficient evidence to support Petitioner’s conviction.

The Court of Appeals also found the 48-hour continuance of

the on-going summary contempt proceeding was consistent

with due process as articulated in Sacher v. United States,

343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952); Ungar v.

Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921

(1964) and Paul v. Pleasants, 551 F.2d 575 (4th Cir.), cert.

denied, 434 U.S. 908, 98 S. Ct. 310, 54 L. Ed. 2d 196

(1977). In addition, the Court of Appeals concluded Judge

Lake did not become “personally embroiled" with Petitioner

so as to violate due process. Nakell, 15 F.3d at 325.

9

REASONS WHY THE WRIT

SHOULD NOT BE GRANTED

The writ should not be granted because Petitioner’s

conteniions are moot, substantively without merit and barred

by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.

Ed. 2d 334 (1989). To the extent Petitioner’s contentions

may not be Teague barred, they involve simple application

of a long established standard to a new fact pattern and do

not raise issues worthy of this Court’s review. Respondent

is aware the determination of whether Petitioner’s claims are

precluded from review by Teague is a threshold issue. In

this case, however, Respondents’ Teague argument is best

understood after discussion of the merits.

I, PETITIONER’S FEDERAL HABEAS ACTION IS

MOOT DUE TO EXPIRATION OF HIS 10-DAY

JAIL SENTENCE AND ABSENCE OF LEGAL

COLLATERAL CONSEQUENCES.

Petitioner’s habeas action should be deemed moot

because Petitioner completed his ten-day jail sentence after

his habeas action was filed and has suffered no legal

collateral consequences. Thus Petitioner does not present a

"live case or controversy" as required by Article III of the

Constitution of the United States.

Under special circumstances, this Court found a

federal habeas action was not moot because "collateral

consequences" survived the sentence, i.e. the inability to

engage in certain businesses, to serve as a juror or to vote.

Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S. Ct. 1556,

10

1559, 20 L. Ed. 2d 554, §58 (1968). See also Sibron v.

New York, 392 U.S. 40, 50-58, 88 S. Ct. 1889, 1896-1900,

20 L. Ed. 2d 917, 927-32 (1968) (misdemeanor); Ginsburg

v. New York, 390 U.S. 629, 633 n. 2, 88 S. Ct. 1274, 1277

n. 2, 20 L. Ed. 2d 195, 200 n. 2 (1968). Here, however,

Petitioner will suffer no legal collateral consequences. He

will not be prevented from voting, N.C. GEN. STAT. § 163-

55 (1991); serving on a jury, N.C. GEN. STAT. § 9-3 (1986);

obtaining a license to practice law (Petitioner is already

licensed)?; In re Rogers, 297 N.C. 48, 253 S.E.2d 912

(1979): becoming an official of a labor union, 29 U.S.C. §

504 (1990); or qualifying for state elective offices, N.C.

Constitution, Article Vi, §8. Nor will Petitioner’s contempt

conviction expose him to enhanced sentence if he commits a

subsequent crime N.C. GEN. STAT. § 15A-1340.4 (Cum.

Supp. 1993) Although Petitioner may contend his reputation

—7

ed

2 Although disciplined by the North Carolina State Bar

on February 4, 1992 for other reasons, Petitioner’s contempt

conviction challenged in this case was specifically excluded

from discipline. The Consent Order of Discipline states in

pertinent patt:

1. The Hearing Committee considered the

disposition of the Rule 11 proceeding in

federa! court and of the 1989 state court

contempt proceeding and determined that no

additional discipline is necessary OT required

as to that claim.

Thus Petitioner cannot fairly contend he is subject to further

discipline for his contempt conviction.

Kaede

11

suffered from the contempt conviction, this does not

constitute a legal collateral consequence justifying federal

habeas review. Broughton v. North Carolina, 717 F.2d 147,

149 n. 3 (4th Cir. 1983), cert. denied, 466 U.S. 940, 104,

S. Ct. 1917, 80 L. Ed. 2d 464 (1984). See also Lane v.

Williams, 455 U.S. 624, 632-33, 102 S. Ct. 1332, 1328, 71

L. Ed. 2d 508, 515-16 (1982).

In addition, potential reimbursement of Petitioner’s

$500.00 fine should not constitute a legal collateral

consequence sufficient to justify further habeas review

because imposition of a fine is insufficient to establish habeas

jurisdiction under 28 U.S.C. § 2254(a) (1992) in the first

instance. Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976)

(petitioner ordered to pay fine and costs was not "in custody"

under §2254), cert. denied, 434 U.S. 825, 98 S. Ct. 72, 54

L. Ed. 2d 82 (1977); Dremann v. Francis, 828 F.2d 6 (9th

Cir. 1987) (federal habeas jurisdiction did not attach to

attorney who was not currently incarcerated for contempt

conviction and would be incarcerated only if he continued to

willfully refuse to pay $500.00 fine). See also United States

v. Michaud, 901 F.2d 5 (1st Cir. 1990), Tinder v. Paula,

725 F.2d 801 (1st Cir. 1984), Spring v. Caldwell, 692 F.2d

994 (Sth Cir. 1982), rehearing denied, 697 F.2d 1092

(1983), Hanson v. Circuit Court of First Judicial Circuit, 591

F.2d 404 (7th Cir. 1979), cert. denied, 444 U.S. 907, 100

S. Ct. 220, 62 L. Ed. 2d 143 (1979). If a habeas action

cannot be initiated based soley upon a fine, it should not

continue based soley opon potential reimbursment. But, cf.

Richmond Black Police Officers Association v. Richmond,

548 F.2d 123, 129 (4th Cir. 1977) ("although the fines have

12

been paid, the case is not moot because the district judge

levied the fines to be paid immediately subject to refund

upon appellate reversal . . .") and Port v. Head, 764 F.2d

423, 427 (Sth Cir. 1985) ("the fine, as a direct consequence

of the contempt convictions, preserves the Port’s stake in the

merits of the appeal they bring before us, despite their

release from custody."). In sum, Petitioner’s federal habeas

action should be deemed moot because his sentence has

expired and he suffers no legal "collateral consequences."

II. THE DECISION OF THE COURT OF APPEALS

FINDING PETITIONER’S SUMMARY

CONTEMPT PROCEEDING SATISFIED DUE

PROCESS WAS CORRECT AND CONSISTENT

WITH MAYBERRY V. PENNSYLVANIA AND

TAYLOR V. HAYES.

In his arguments I and II Petitioner contends he was

entitled to a plenary contempt hearing before a different

judge because (i) Judge Lake continued the on-going

summary contempt proceeding for two days; (ii) Judge Lake

became "personally embroiled" with Petitioner and Hatcher;

(iii) Judge Lake requested affidavits from those present in the

courtroom; and (iv) Judge Lake made a statement to the

press before completion of the contempt proceeding. These

contentions do not warrant further habeas review.

13

A. JUDGE LAKE’s DECISION TO CONTINUE THE

SUMMARY CONTEMPT HEARING FOR FORTY-

EIGHT HOURS TO AFFORD NAKELL AN

OPPORTUNITY TO OBTAIN COUNSEL WAS

CONSISTENT WITH DUE PROCESS.

The mandatory rule Petitioner urges this Court to

adopt, i.e. that due Process forbids a trial court from briefly

continuing a summary contempt hearing until sometime after

pending Proceedings have concluded and that a plenary

hearing is always required in such instances, has been

Squarely rejected by this Court. See Sacher v. United States,

343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952); Ungar v.

Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 24 92]

(1964). These decisions recognize the critical issue is not

whether the hearing has been briefly continued, but whether

the presiding judge has become personally embroiled.

For example, in Sacher this Court addressed the

question of whether a trial court could summarily find

Persons in direct criminal contempt of court at the conclusion

of trial rather than immediately when the contemptuous

conduct occurred. At the completion of a celebrated nine-

month trial of communist leaders under the Smith Act, the

trial judge summarily found one defendant and defense

attorneys in contempt and sentenced them to various terms

not exceeding six months. This Court held the trial judge

had discretion to wait until the end of trial before exercising

summary contempt power. Justice Jackson wrote:

[iJf the conduct of these lawyers warranted

immediate summary punishment on dozens of

ioctl ied en ea TT TITS

ieee etiiinetiede ie Le

14

occasions no possible prejudice to them can

result from delaying it until the end of trial if

the circumstances permit such delay. The

overriding consideration is the integrity and

efficiency of the trial process, and if the judge

deems immediate action inexpedient he should

be allowed discretion to follow the procedure

taken in this case. Sacher, 343 U.S. at 10, 72

S.Ct. at 455, 96 L. Ed. at 724.

A similar result was reached in Ungar v. Sarafite,

376 U.S. 557, 84 S. Ct. 841, 11 L. Ed. 2d 921. In Ungar

a witness, in a state criminal trial who was also an attorney,

refused to answer questions posed by the prosecution. When

the judge pressed him to answer, he refused and stated the

judge "coerced and intimidated and badgered" him and the

judge was "suppressing the evidence." Ungar, 376 U.S. at

579-80, 84 S. Ct. at 844-45, 11 L. Ed. 2d at 925-26. The

judge immediately informed Ungar he was "contemptuous .

. . disorderly and insulent." Jd. At the conclusion of trial,

the judge served a show-cause order alleging contempt and

ordering Ungar to appear in court four days later where the

same judge found him guilty of contempt and sentenced him

to ten days in jail and a $250.00 fine.

Although the notice of contempt was given pursuant

to a "non-summary” contempt statute, 376 U.S. at 581, 84

S. Ct. at 845, 11 L. Ed. 2d at 926, Ungar contended the

proceedings themselves were actually summary, apparently

because the same judge presided at the contempt hearing.

Therefore, Ungar argued before this Court, inter alia, that

his due process rights were violated by, "the trial judge’s

15

invoking of the summary power under [a New York statute]

seven days after the end of the trial during which the

contempt was committed, . . .". Ungar, 376 U.S. at 582, 84

S. Ct. at 846, 11 L. Ed. 2d at 927. This Court held that

notwithstanding the strong, intemperate language Ungar used,

the judge did not become embroiled with him and therefore

could preside over the contempt hearing even though it was

delayed for seven days after the conclusion of the trial.

Furthermore, in his concurring opinion, Justice Harlan

specifically acknowledged a trial judge can postpone a

summary contempt proceeding for a few days after the close

of trial and still proceed summarily.

- . . Judge Sarafite, so far as the Federal

Constitution is concerned, could have

proceeded at the close of the main trial to

hold Ungar in contempt without any hearing

at all. The fact that the contempt adjudication

followed a five-day notice given to Ungar two

days after the close of the trial, cannot as a

constitutional matter, well be deemed to have

extinguished the judge’s power to proceed

summarily. Ungar, 376 U.S. at 591-92, 84

S. Ct. at 851, 11 L. Ed. 2d at 932 (J. Harlan

concurring).

In addition, even in cases in which this Court has

reversed summary contempt proceedings conducted after the

Close of trial, the Court has emphasized the critical factor

was the trial judge’s personal embroilment and not the mere

fact the summary contempt proceedings were briefly delayed.

See, e.g., Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.

Ct. 499, 27 L. Ed. 2d 532 (1971); Taylor v. Hayes, 418

16

U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974). In

Mayberry, the state trial judge was subjected to a barriage of

personal insults from the contemnor. This Court held a trial

judge so cruelly slandered by the contemnor could not

preside at a summary contempt proceeding delayed until the

end of trial. According to this Court, when a trial judge ".

. . does not act the instant the contempt is committed but

waits until the end of trial, on balance it is generally wise

where the marks of the unseemly conduct have left personal

stings to ask a fellow judge to take his place." 400 U.S. at

463-64, 91 S. Ct. at 504, 27 L. Ed. 2d at 539 (emphasis

added). Thus, the critical factor in Mayberry was the

unseemly personal stings left by the contemnor’s verbal

attack and not the mere fact the proceedings had been

delayed until sometime after trial. Because, as described

above, Petitioner did not verbally attack Judge Lake but

simply refused to obey his instructions, recusal was not

required here as it was in Mayberry. Similarly, in Taylor

this Court again acknowledged that ". . . summary

punishment need not always be imposed during trial if it is

to be permitted at all." 418 U.S. at 497-98, 94 S. Ct. at

2703, 41 L. Ed. 2d at 907. However, in Taylor this Court

found "marked personal feelings" existed between the

contemnor and the trial judge requiring a new contempt

hearing before a different judge. As set forth below,

however, there were no such "marked personal feelings”

between Nakell and Judge Lake. Thus the finding of

contempt in the case at bar was not inconsistent with Taylor.

In sum, contrary to Petitioner’s arguments I and II,

there is no mandatory requirement that whenever a court

17

continues a contempt hearing until conclusion of the

proceedings and then for an additional two days that the

hearing must be plenary. The Court of Appeals correctly

held Petitioner’s summary Contempt proceeding satisfied due

process and this conclusion is consistent with Mayberry and

Taylor.

B. JUDGE LAKE was NOT "PERSONALLY

EMBROILED" WITH NAKELL.

While a judge who is so cruelly slandered by a

contemnor that he is unlikely to maintain his calm

detachment should allow another judge to adjudicate the

contempt, Mayberry, 400 U.S. 455, 91 S. Ct 499, 27 L.

Ed. 2d 532, "there is as much obligation upon a judge not to

recuse himself when there is no occasion as there is for him

to do so when there is." In re Union Leader Corp., 292

F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.

Ct. 361, 7 L. Ed. 2d 190 (1961). Furthermore, there is

every practical reason why a contempt hearing should not be

transferred to another judge. Generally, it would result in

needless delay and waste of judicial resources. Another

judge would not possess the advantage of having observed

the contemnor and his demeanor when the events occurred.

The fundamental premise of contempt of court is that the

judge, in whose presence it occurs, is best fitted to pass upon

it, save in exceptional cases. See Blankenburg v.

Commonwealth, 272 Mass. 25, 172 N.E. 209 (1930), cert.

denied, 283 U.S. 819, 51 S. Ct. 344, 75 L. Ed. 1435

(1931). The case at bar does not present such an exception.

18

Judge Lake’s statements prior to sentencing Nakell

bear out his befitting judicial decorum and shows he bore no

personal anamosity toward Nakell. (App 7a) Furthermore,

contrary to Petitioner’s suggestion there is no evidence

showing Judge Lake was unable to distinguish Nakell’s

contemptuous conduct from that committed by Hatcher even

though Nakell’s conduct resulted in applause from the

audience and Hatcher’s violent outburst. The behavior and

comments of Nakell, while clearly contemptuous, were not

such that "a judge of ordinary sensibilitites might naturally

be expected to harbor ’marked personal feelings’ against the

attacker, ...". United States v. Meyer, 462 F.2d 827, 839

(D.C. Cir. 1972). Contemptuous behavior which requires

recusal must be obviously and highly personal attacks on the

sitting judge. For instance, the conduct found so highly

personal as to require recusal in Mayberry consisted of the

contemnor calling the judge "a dirty son-of-a-bitch", a "fool"

and a "stumbling dog". 400 U.S. at 466, 91 S. Ct. at 505,

27 L. Ed. 2d at 540. Nakell’s conduct in no way rose to the

highly personal nature of the remarks in Mayberry. Thus the

Court of Appeals’ decision upholding Nakell’s contempt

conviction was not inconsistent with this Court’s holding in

Mayberry.

In addition, Taylor v. Hayes, 481 U.S. 488, 94 S. Ct.

2697, 41 L. Ed. 2d 897 emphasized it is not the contemnor’s

behavior standing alone which requires recusal, but rather a

critical factor is the character of the court’s response to the

behavior. The record reveals no evidence of Judge Lake

becoming personally embroiled or "doing battle with"

Nakell. Rather, the record shows the court’s character in

19

response to Nakell was superlative. (App 7a) Furthermore,

the short length of Nakell’s 10-day jail sentence also

indicates Judge Lake did not become personally embroiled.

It is no coincidence that this Court’s most noted decisions

reversing contempt convictions involved very lengthy jail

terms imposed by lower courts on the contemnor. For

example, in Justice Harlan’s concurring opinion in Mayberry,

he noted the defendant in that Case had received a 22-year

sentence for eleven acts of contempt. According to Justice

Harlan, "[t)hat circumstance seems to me to deprive the

contempt proceeding of the appearance of even-handed

justice which is at the core of due process." 400 U.S. at

469, 91 S. Ct. at 507, 27 L. Ed. 24 at 542. In Taylor, the

trial court originally sentenced the contemnor to a total of

four and one-half years for nine counts of direct criminal

contempt. This Court stated "[w]e assume for the purposes

of this case that each of the charged acts was contemptuous;

nevertheless, a sentence of this magnitude reflects the extent

to which the respondent [judge] became personally

embroiled." 418 U.S. at 502-03, 94 S. Ct. at 2705, 41 L.

Ed. 2d at 910. In the case at bar, however, Nakell’s 10-day

sentence and $500.00 fine compare favorably to the six

month sentences in Sacher, and the 10-day sentence and

$250.00 fine in Unger, in which the contempt convictions

were upheld. Certainly nothing related to Petitioner’s

sentence betrays any "personal embroilment" on Judge

Lake’s part.

20

+4 JUDGE LAKE DID NOT BECOME PERSONALLY

EMBROILED WITH NAKELL BY REQUESTING

THE LAWYERS AND COURT REPORTER TO

PROVIDE AFFIDAVITS DESCRIBING WHAT

THEY OBSERVED.

Although Petitioner characterizes this action as an

investigation the record shows Judge Lake simply asked the

court reporter and the lawyers, who are officers of the

court, to provide affidavits describing what they saw. This

action was apparently taken to further preserve the record for

appellate review and did not prejudice Petitioner in any way.

Furthermore, it did not evince "personal embroilment" on

Judge Lake’s part.

D. JUDGE LAKE’S STATEMENT TO A REPORTER

DID NOT INDICATE IMPERMISSIBLE

PREJUDGMENT OF NAKELL’S GUILT.

While Judge Lake acknowledged an individual,

apparently a reporter, called him on the telephone about this

case, the evidence shows Judge Lake merely gave him a

rough recitation of the contempt charge against Nakell which

anyone present in the courtroom would have heard, i.e. "Mr.

Nakell had been disruptive of the proceedings, pandering to

the audience and the defendant and encouraging Mr. Hatcher

to be disruptive" and "[a]fter repeated interruptions Judge

Lake said in an interview, he ordered Mr. Nakell to sit down

and be quiet. The lawyer, however, continued to stand

pleading Mr. Hatcher’s case."

21

Whether Judge Lake’s statement to a reporter

constituted a technical violation of the Canons of Judicial

Conduct is not a matter for adjudication here. Judge Lake’s

Statement, however, did not indicate improper prejudgment

of Nakell’s guilt. In Ungar, after the witness made

contemptuous statements to the court, the judge immediately

responded "[y]Jou are not only contemptuous but disorderly

and insulent.". Ungar, 376 U.S. at 580, 84S. Ct. at 845, 11

L. Ed. 2d at 926. On appeal Ungar contended, as does

Nakeli, that these statements by the judge evinced

prejudgment requiring the case be heard before another judge

in a plenary hearing. This Court rejected this argument and

held:

[t}he characterization of Petitioner’s conduct

as Contemptuous, disorderly and malingering

was at most a declaration of the charge against

the petitioner, based on the judge’s

observations, which, without more, was not a

constitutionally disqualifying prejudgment of

guilt, just as issuance of a show-cause order in

any criminal contempt case, based on

information brought to the attention of a

judge, is not such a prejudgment of guilt.

Ungar, 376 U.S. at 586-88, 84 S. Ct. at 848-

49, 11 L. Ed. 2d at 930.

Similarly, in the case at bar, Judge Lake’s rough recitation

of the contempt charge to the reporter did not constitute

impermissible prejudgment of Nakell’s guilt.

In addition, a recent decision of this Court involving

a recusal motion under 28 U.S.C. § 455(a) (1988),

emphasized that:

judicial remarks during the course of a trial

that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases,

ordinarily do not support 2 bias for partiality

charge. . . . they will do so if they reveal

such a high degree of favoritism or

antagonism as *%0 make fair judgment

impossible. Liteky v. United States, _ U.S.

fap Sew we. AA. 1967, 1157, 127 L. Be.

2d 474, 491 (1994).

Here, Judge Lake’s comments to the reporter did not reveal

"such a high degree of favoritism or antagonism as to make

fair judgment impossible." Perhaps the district court

summarized this matter the best when it stated "Judge Lake’s

respomse to the media, although in hindsight was not a wise

judici@ setivity, did not reveal any prejudice or display any

bias. It was merely a rough recitation of the direct criminal

contempt charges stated in open court on November 14,

1989." In any event Petitioner’s summary contempt hearing

was not fundamentally unfair entitling him to habeas relief.

fil. THE COURT OF APPEALS’ DECISION

FINDING SUFFICIENT EVIDENCE TO

SUPPORT NAKELL’S CONVICTION IS

CORRECT AND CONSISTENT WITH IN RE

MCCONNELL AND THE NINTH CIRCUIT

OPINION IN GREENBERG.

The standard of review on habeas corpus of a claim

of insufficient evidence is whether, after viewing the

23

evidence in the light most favorable to the prosecution, any

rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S. Ct. 2781, 81 L. Ed. 2d 560 (1979); Wright

v. West, 505 U.S. —_» 112 S. Ct. 2482, 120 L. Ed. 24 225

(1992).

To convict Nakell of direct criminal atempt the

state had to prove he (i) committed a contemptuous act

within sight or hearing of a presiding judge; (ii) in immediate

proximity to the proceeding; and (iii) was likely to interrupt

or interfere with matters then before the court. N.C. GEN.

STAT. § 5A-13 ( 1986). A contemptuous act includes: wilfu]

behavior committed during the sitting of a court directly

tending to interrupt its proceedings; wilful behavior

committed during the Sitting of a court in its immediate view

and presence and directly tending to impair the respect due

its authority; or wilful disobedience of, resistence to, or

interference with a court’s lawful process, order, directive or

injunction or its execution. N.C. GEN. STAT. § 5A-11

(1986). The evidence in this case was sufficient to support

Nakell’s conviction.

Here, Nakell entered the courtroom during on-going

proceedings, tendered a notice of limited appearance to the

clerk and interrupted the court and asked to be heard. Judge

Lake said "[njo, [s]ir, not at this point." Nakell interrupted

again and Judge Lake informed him that his notice of limited

appearance was not in compliance with Judge Farmer’s

September 6 order. Nakell continued to speak and Judge

Lake told him "{nJo, {s]ir, Mr. Nakell, I’m not going to hear

24

you." When Nakell continued, Judge Lake responded "I said

I’m not going to hear you. Sit down. Sit down." Judge

Lake asked Nakell "[d]o you want to be removed from this

courtroom?" Nakell continued to speak and Judge Lake told

him "I said sit down, Mr. Nakell. That’s a direct order from

the Court."

When Nakell continued to speak, Judge Lake said

“[dJo you want to be held in direct criminal contempt of this

Court?" At that point, Hatcher blurted obscenities and

Nakell continued tu assert his position. Judge Lake

responded, "I am directing you specifically to sit down and

be quiet." A few minutes later Nakell rose to address the

court and Judge Lake said "I’m going to direct you not to

interrupt me now. If you want to. . . pose a question to the

court, you do so through Mr. Thompson." Again Nakell

refused to comply and Judge Lake said "[t}ine court does not

recognize your representation of this defendant." Finally,

Judge Lake said "[w]ell, let me see if 1 can make you

understand, Mr. Nakell. I am denying your request for a

limited appewr®uce on behalf of this defendant and I am

directing you to sit down and be quiet and not say another

word to the court except if you want to say something, do it

through Mr. Thompson." Then, without sitting down,

Nakell turned to Mr. Thompson and in the same tone of

voice used to address the court, said, “[aJlright. Mr.

Thompson would you inquire about the basis - legal basis for

a licensed North Carolina attorney from appearing on behalf

of a defendant in a criminal case in association with the

public defender -". Judge Lake tried to interrupt Nakell and

Hatcher blurted obscenities while Nakell continued to talk.

25

At this point, Judge Lake ordered the bailiff to remove

Nakell from the courtroom. Hatcher then threw two pens at

the bench, blurted more Obscenities and had to be removed.

This evidence, viewed in the light most favorable to the state

was more than sufficient to allow a rational trier of fact to

find Nakell guilty of direct criminal contempt beyond a

reasonable doubt.

In addition, the Court of Appeal’s decision jis

consistent with Jn re McConnell, 370 U.S. 230, 82 S. Ct.

1288, 8 L. Ed. 2d 434 (1962) and Matter of contempt of

Greenberg, 849 F.2d 1251 (9th Cir. 1988). In McConnell,

a lawyer was prohibited by the trial judge from asking a line

of questions. The lawyer complained he had a right to ask

the questions and would continue to "to do so unless some

bailiff stops us." 370 U.S. at 235, 82 S. Ct. at 1292, 8 L.

Ed. 2d at 438. This Court held the lawyer’s comments were

nothing more than strenuous, presistent advocacy insufficient

tO support a contempt conviction. Nakell’s conduct and

statements, however, were far more egregious than those in

McConnell. Nakell repeatedly refused Judge Lake’s orders

to sit down and be quiet and as Stated by the district court

"[i]nstead of quietly asking Mr. Thompson to pose his

question to the court, Mr. Nakel] audibly addressed Mr.

Thompson, which action this court views as deliberate

disrespect." Thus nothing in McConnell is inconsistent with

the finding of contempt in the case at bar.

Nor is the Court of Appeals’ decision inconsistent

with Greenberg, 894 F.2d 125}. There, an attorney was

convicted of contempt in a summary proceeding for loudly

26

stating an objection, slamming his hand on counsel table,

twice asking for a ruling and refusing to sit down until asked

twice. The Ninth Circuit found this conduct standing alone

insufficient basis for a summary contempt conviction. As set

forth above, however, Nakell’s conduct far exceeded that of

the lawyer in Greenberg and thus the Ninth Circuit’s decision

is not inconsistent with the finding of contempt in this case.

In sum, sufficient evidence supported Nakell’s conviction and

further review is unwarranted.

IV. PETITIONER’S HABEAS ACTION IS TEAGUE

BARRED.

Respondents did not raise Teague in either the district

court or the Court of Appeals. As recently noted by this

Court, however, the prevailing party "is entitled to rely on

any legal argument in support of the judgment below."

Schiro v. Farley, U.S. ___, __, 114 S. Ct. 783, ___,

127 L. Ed. 2d 47, 57 (1994), citing Dandridge v. Williams,

397 U.S. 471, 475-76 n. 6, 90S. Ct. 1153, 1156-57 n. 6, 25

L. Ed. 2d 491, 496 n. 6 (1970). Admittedly, this Court

rarely addresses arguments not raised below, but given the

threshold nature of Teague it should be allowed here.

Although Petitioner’s due process claim appears to

involve nothing more than simple application of a long

established standard to a new fact pattern, Petitioner does

seek a "new rule" of constitutional adjudication to the extent

he argues a contempt hearing must be plenary rather than

summary when held two days after the conclusion of the

proceedings. As set forth above in Argument II, this

assertion is flatly contradicted by this Court’s decisions in

Sacher and Ungar where delays in summary, or allegedly

summary, contempt proceedings were approved, é.g., in one

hg aaa San deta oa aah

27

instance up to seven days after trial. Thus to adopt

Petitioner’s claim would necessarily contradict Sacher and

Ungar and thereby create a "new rule" of constitutional

adjudication prohibited by Teague. See generally, Butler v.

McKellar, 494 U.S. 407, 110 S. Ct. 1212, 108 L. Ed. 2d

347 (1990); Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257,

108 L. Ed. 2d 415 (1990); Caspariv. Bohlen, U.S. ___,

114 S. Ct. 948, 127 L. Ed. 2d 236 (1994).

In addition, although a majority of this Court in

Wright v. West, 505 U.S. __, 112 S. Ct. 2482, 120 L. Ed.

2d 225 declined the invitation to apply Teague to the issue of

insufficiency of the evidence, Respondents believe it is the

appropriate standard. The decision of the North Carolina

Court of Appeals finding sufficient evidence was a

reasonable, good-faith application of existing law, and its

decision should not be second-guessed on habeas review.

See Butler and Saffle. Finally, the "new rules" urged by

Petitioner fall within neither of the Teague exceptions since

they would not decriminalize a class of conduct or establish

“watershed rule(s] of criminal procedure" implicating

fundamental fairness. Saffle, 494 U.S. at 494, 110 S. Ct. at

1263, 108 L. Ed. 2d at 428-29. In sum, Petitioner’s

contentions should be precluded from review by Teague.

28

CONCLUSION

The writ of certiorari should not be granted in this

case because Petitioner’s habeas action is moot, substantively

without merit and Teague barred. The Court of Appeals’

decision was correct and consistent with decisions of this

Court and the Ninth Circuit.

Respectfully submitted,

MICHAEL F. EASLEY

North Carolina Attorney General

Clarenc J. DelForge, III

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-3109

July 26, 1994

EONS ME POM ay ye . “ $ a PAP Sy Ee IE 4 Rs A TRE RETR SR

oat P f - J " > * ° RIT Pea

3EST AVAILABLE COPY

APPENDIX

TABLE OF CONTENTS

JUDGE LAKE’S FINDINGS OF FACT

AND CONCLUSIONS OF LAW ENTERED

IN SUPERIOR COURT OF ROBESON

COUNTY ON NOVEMBER 16, 1989

(TRANSCRIPT PAGES 95-102)

JUDGE LAKE’S COMMENTS BEFORE ENTERING

HIS FINDINGS OF FACT AND CONCLUSIONS

OF LAW IN SUPERIOR COURT OF ROBESON

COUNTY ON NOVEMBER 16, 1989

pe 7a

This page intentionally left blank.

la

JUDGE LAKE’S FINDINGS OF FACT

AND CONCLUSIONS OF LAW

All right. Madam court reporter, madam clerk, upon

the foregoing showing, the evidence presented to the Court,

the response to the Court by Mr. Nakell directly through his

Own testimony and through counsel, consideration of the

transcript of the proceedings immediately past in the Eddie

Hatcher motion hearing, said the Court’s very vivid

recollection of those events, the Court makes the following

findings of fact. Each of these findings the Court finds

beyond a reasonable doubt.

The Court -- upon the call of the cases of Eddie

Hatcher for a motion hearing November 14 at ten past four

o'clock in the evening, the defendant appeared in person,

Mr. Hatcher, with court-appointed counsel, Mr. Angus

Thompson, the Court -- the public defender, with assistant

Freda Bowman. The hearing commenced at that time with

the State being represented by District Attorney Richard

Townsend.

The Court further finds that while the Court was

recognizing the persons present representing the various

parties, the State and the defendant, and stating the --

beginning to state the predicate for the hearing, that is, what

was before the Court, the pro se motion by Eddie Hatcher

for self-representation and the second motions for

reconsideration -- or motion for reconsideration filed that day

by Mr. Thompson and Mr. Nakell on behalf of the

defendant, the Court while proceeding to state the predicate

and the previous orders entered by the Court, the most recent

2a

orders, noted Mr. Nakeil’s entry into the courtroom and his

approach to and sitting at counsel table with the defendant,

Eddie Hatcher.

The Court then proceeded to state to the parties the

Court’s understanding of the previous orders entered by the

Court, specifically the last three orders entered by judge

Farmer of September 5, September 6 and October 16, 1989.

The Court was -- during the course of trying to establish the

predicate and the order appearing of the matters before the

Court, including the defendant’s second motion tor

reconsideration for out of state counsel, the Court was

addressed at least three times by the respondent, Barry

Nakell, and was told following the initial communication that

he would not be heard at that time and to sit down and be

quiet.

The Court further finds that the defendant -- the

respondent, rather, Mr. Nakell, on at least three occasions

refused to do so and continued to address the Court, stating

the arguments that he has again put forth here today. Ail of

which considerably delayed the Court and interrupted the

Court’s statement of the predicate or matters before the

Court and the order in which the Court desired to hear them.

The Court further finds that it was made abundantly

clear on several occasions to Mr. Nakell that the Court was

only recognizing Attorney Angus Thompson as the only

attorney of record for the defendant, Eddie Hatcher, and

that the Court was not recognizing Mr. Nakell, not accepting

his limited appearance on the basis that it did not conform or

3a

comply with the order of September 6 entered by Judge

Robert Farmer.

The Court finds as a fact that there was not and could

not have been any misunderstanding in the mind of Mr.

Nakell as to the Court’s ruling and that he was not being

recognized by the Court and that the Court desired for him

to sit down and be quiet.

The Court further finds as a fact that after it was

made abundantly clear to Mr. Nakell the Court’s ruling with

regard to the reaffirmation of Judge Farmer’s order that he

was not recognized by the Court as having standing in the

Court, the defendant further proceeded to address the Court,

make arguments to the Court, repeating arguments previously

made and ruled upon by Judge Farmer and by this Court.

That the Court again at that point told Mr. Nakell to

sit down. He was directed specifically not to interrupt the

Court.

The Court further finds that Mr. Nakell further at that

point was specifically directed that if he wished to make any

communication to the Court, that he do so through Mr.

Angus Thompson.

The Court finds as a fact that Mr. Nakell fully

understood that and the import of that directive.

That thereafter -- the Court further finds that

thereafter, the Court again directed Mr. Nakell after being

interrupted by Mr. Nakell and being advised again by the

ta

Court that he was denying his request for limited appearance

and being directed to sit down and be quiet and not say

another word to the Court except through Mr. Thompson,

that at that point Mr. Nakell did not sit down, he remained

standing. He turned sideways to the Court toward Mr.

Thompson and in the same tone of voice and with the same

volume asked the same repeated question and argument

requesting that Mr. Thompson ask the Court the legal basis

for the Court’s ruling which had already been explained to

Mr. Nakell.

That the Court tried to interject by saying, "Mr.

Nakell." Mr. Nakell refused to heed the Court, and

continued with his statement to the Court while looking at

Mr. Thompson.

The Court finds further as a fact that at that point, the

Court directed the bailiff to remove Mr. Nakell, and at that

point immediately following Mr. Nakell’s statement and the

Court’s direction to the bailiff, the effect of Mr. Nakell’s

statement to Mr. Thompson was substantial applause from

the audience from supporters of Mr. Hatcher.

That the Court further finds that immediately at that

point as Mr. Nakell was turning with the bailiff toward the

door, the effect on the defendant of Mr. Nakell’s statement

to Mr. Thompson was further obscenities directed to the

bench, followed immediately by the defendant, Eddie

Hatcher’s, resort to violence and an attack upon the Court by

throwing a pen or some other object which struck the court

bench.

’

3

BI

a

Sa

The Court finds as a fact in the Court’s close and

direct observation of the entire sequence of these events

including the tone of voice of Mr. Nakell, the expression on

his face, and the volume of his voice in directing his inquiry

-- his further inquiry to the Court while looking at Mr.

Thompson was the direct cause of the disturbance and

applause from the audience and was the direct cause of Mr.

Hatcher’s behavior in exceeding his previous attacks on the

Court by his language and launching into a violent attack

upon the Court.

The Court further finds as a fact that all of the

foregoing occurred in the direct view and observation of the

Court.

The Court further finds as a fact that the conduct of

the defendant was willfully contemptuous, was deliberate and

calculated and designed to disrupt the proceedings of the

Court.

The Court further finds as a fact that the foregoing

acts of the defendant were preceded by numerous distinct,

direct and clear warnings by the Court that the conduct was

improper.

Upon the foregoing findings of fact, the Court makes

and enters the following conclusions of law.

The conduct of Attorney Barry Nakell constituted

willful behavior committed during the sitting of a Court and

directly tended to interrupt its proceedings. That’s number

one.

6a

Number Two, the conduct of Attorney Barry Nakell

constituted willful behavior committing during the sitting of

a Court in its immediate view and presence and directly

tended to impair the respect due the authority of the Court.

Number Three, the conduct of Attorney Barry Nakell

constituted willful disobedience of and resistance to or

interference with a Court’s lawful directive and order.

Whereupon, the Court finds and holds the defendant

guilty of direct criminal contempt of court.

Ta

JUDGE LAKE’S COMMENTS BEFORE ENTERING

HIS FINDINGS OF FACT AND CONCLUSIONS OF LAW

You mentioned toward the close of your argument the

difficulties of Mr. Nakell in representing a volatile client and

in a volatile situation. It certainly was that.

It’s unfortunate that for the sake of his attorneys, both

Mr. Thompson, Mr. Nakell while he was here involved in

the case, and the other attorneys, had to endure what I know

they had to endure in trying to represent Mr. Hatcher. And

I’m very sympathetic to that. I’ve had clients like that

myself when I was practicing law.

But the attorneys regardiess of their clients have got

to be aware of the overall situation and mindful that the

judge has got to try to keep a lid on the situation to Keep it

from exploding. And that’s why the judge must be in control

of the courtroom. That’s why his orders and directives to

attorneys and to parties, litigants, have to be complied with.

I wish that Mr. Nakell’s demeanor Tuesday had been

what it was today, and his conduct. I, perhaps, have the best

vantage point of anybody in any courtroom, any judge does,

of what is going on directly in front of the bench in

particular. A judge can see the expression on the faces of

whoever’s involved, the body language, the coloration of the

face. It can hear the tone of voice and see the reactions,

perhaps -- not perhaps, certainly hetter than anybody else in

the courtroom.

As far as the -- this Judge is concerned, as I told Mr.

8a

Hatcher, nothing he said or did was going to bother me, and

it didn’t. Personally, what Mr. Nakell said and did did not

bother me. It bothered me as a lawyer. It bothered me as

a judge. It bothered me as an officer of the Court and the

State presiding over a courtroom in a highly volatile

situation. It bothered me from the standpoint of having to

maintain control and to keep violence from erupting and to

maintain not on behalf of myself but on behalf of the court

system the proper decorum and respect for the Court because

I think, as you’ve alluded to, without that our whole system

is going to collapse.

I’m not concerned with respect to this proceeding

with the several times that I told Mr. Nakell to sit down and

be quiet before we had several long exchanges and he did get

to say what he wanted to say, not that I wanted to hear it,

but he said it. I’m not concerned with that except as a -- as

it bears on what happened later. When, as Mr. Nakell has

s°id on the stand, there was no question in his mind that |

had ruled to affirm Judge Farmer’s order and that I

considered Mr. Thompson the only attorney in the courtroom

for Mr. Hatcher. There was no question in Mr. Nakell’s

mind at that point. No question that I did not want to hear

from him directly, that I wanted him to sit down and be

quiet.

What bothers me and why I had Mr. Nakell removed

was with all of that predicate, he then turned, in what I saw

and perceived to be a most disrespectful manner, to Mr.

Thompson after being directly ordered to sit down and be

quiet and not address the Court, but to communicate only

9a

through Mr. Thompson, he refuses to do that, remains

standing and in a loud voice directs again his same inquiry

to the Court but by looking at Mr. Thompson and saying,

Mr. Thompson, will you ask.

The respondent, Mr. Nakell, may not have intended

or expected the audience reaction, may or may not have, I

can’t say. But the audience reaction from the supporters of

Mr. Hatcher speak more eloquently than anything else the

way in which Mr. Nakell had conducted himself at that point

toward the Court.

It was at that point that I saw I had no alternative but

to remove Mr. Nakell. And the immediate effect of that, the

bailiffs coming up, following the outburst from the audience,

was the violent attack, harmless in result, but a violent attack

by Eddie Hatcher against the Court.

As far as my personal feelings are concerned, I’ve

had defendants throw much worse things than pens at me.

I’ve had an entire counsel table thrown at me. So from a

personal standpoint, it’s of no consequence to me either what

Mr. Hatcher did nor what Mr. Nakell did. My concern is

for the courts and the law.

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