Petition for A Writ of Certiorari — Taylor v. Hayes

i ——————

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INDEX

me PAGE

_ Witation to Opinion Below... ..................... 1

se dace iu 2a csvlvveaesaeatlé is lruie 1-2

Constitutional Provisions Involved... .............. 2

Questions | Peper err eer Tre Pree eee 2- 3

Statement i ii okineincicvincssas 3- 8

Reasons for Granting the Writ... ................. 9-31

I. This Court Should Grant Certiorari to Determine

the Substantial Question of Whether an Alleged

Contemnor’s Right to Trial by Jury on Multiple

Contempt Charges Can Be Defeated by the Sub-

sequent Actions of the Trial Judge or the Re-

viewing Court in Reducing or Modifying the

Sentence so That the Total Sentence Imposed

Does Not Exceed Six Months’ Imprisonment,

Thereby Converting the Offense Into a “Petty

Offense,” Within the Meaning of the Trial by

a INS og Sodas eceehnchias 004008 obese 9-14

IL. This Court Should Grant Certiorari to Determine

the Substantial Question of Whether Due Process

Requires That, When a Trial Judge Proceeds

Summarily to Punish for Alleged Contempts

Committed in His Presence, the Contemnor Must

Be Given Some Opportunity to Be Heard in De-

fense or Mitigation Before He is Finally Ad-

judged Guilty and Sentence is Imposed........ 15-19

Ill, The Holding of the Court Below That the Trial

Judge Could Impartially Sit in Judgment on the

Multiple Contempt Charges Against the Peti-

tioner is Clearly Inconsistent With the Decisions

of This Court on the Question of Judicial Dis-

qualification in Contempt Proceedings......... 20-28

ii

’

PAGE

IV. This Court Should Grant Certiorari to Determine

the Substantial Question of What Conduct on

the Part of an Attorney Engaged in Zealous

Representation of His Client Can Be Made Pun-

ishable as Criminal Contempt on the Ground

That It Has Created a Material Obstruction to

the Administration of Justice... ............. 28-31

I is Sa ois 6 i ok CaaCanws ccaee awe vaceees 32

MIG av iv Sinn Hed N Re aa ae ehe rs bieeceecacews 33-59

Opinion of the Court of Appeals of Kentucky...... 33-49

Order of the Court of Appeals Overruling Petition

Oe I kd eek cas ancenhneaseeeses 50-51

Order of the Court of Appeals Staying Execution

and Enforcement of Mandate... .............. 52-03

Corrected Judgment and Certificate of Contemp-

tuous Action in the Presence of the Trial Court. .53-57

Proceedings Upon Imposition of Punishment for

CN aii bois Voss we ob icc the dasetacues es 58-59

AUTHORITIES CITED

Cases: PAGE

Arnett v. Meade, Ky., 462 S. W. 2d 940 (1971)..... 12

Baldwin v. New York, 399 U. S. 66 (1970)....... 9, 11,13

Beasley v. Wingo, Ky., 432 S. W. 2d 413 (1968).... 8,10

Bloom v. Illinois, 391 U.S. 194 (1968)............. 27

Brown v. United States, 356 U. S. 148 (1958)...... 29

Brown v. United States, 359 U. S. 41 (1959)....... 16

Craig v. Harney, 331 U. S. 367 (1948)............. 29

In re Dellinger, 461 F. 2d 389 (7th Cir. 1972)....... 24, 27

Frank v. United States, 395 U. S. 147 (1969)....... 11, 13

Groppi v. Leslie, 404 U. 8. 496 (1972).............. 15-16

Holt v. Virginia, 381 U. S. 131 (1965)............. 24

Johnson v. Mississippi, 403 U. 8. 212 (1971)... .16, 18, 20

. Levine v. United States, 362 U. S. 610 (1960)...... 16

In re Little, 404 U. S. 553 (1972)...........0...... 28, 30

Local No. 1667, United Auto Workers v. Kawneer

Company, Inc., Ky., 490 S. W. 2d 747 (1973)... 10

McBride v. Commonwealth, Ky., 432 S. W. 2d 410

SR ed. Kvn en nh os dese eee Sand eanai ween ses 8, 10

In re McConnell, 370 U. S. 230 (1962)............. 28, 30

Mayberry v. Pennsylvania, 400 U. S. 455 (1971) .20, 21, 27

Mitchell v. Fiore, 470 F. 2d 1149 (3rd Cir. 1972).... 13

Offutt v. United States, 348 U. S. 11 (1954). .20, 21, 23, 27

In re Oliver, 333 U. S. 257 (1948). ................ 17

People v. Carr, 3 Ill. App. 2d 227, 278 N. E. 2d 839

GRE Dia 6 nw cigs eb nse 0s swwnnenseeecnssess ens 17

Sacher v. United States, 343 U.S. 1 (1952)........ 16

Ungar v. Sarafite, 376 U. S. 575 (1964)............ 24

United States v. Galante, 298 F. 2d 72 (2d Cir.

Co) re eee ere eee er ee 15, 17

United States v. Meyer, 462 F. 2d 827 (D.C. Cir.

FOR oy veo hes gee ceen see seesares ere 20-21, 24-25

United States v. Seale, 461 F. 2d 345 (7th Cir. 1972). 10

$y

iv

Constitutional Provisions, Statutes and Rules: es

U. & Comet. Amand. VI... 2. ccccccccccceseces 2,14

U. S. Const. Amend. XIV................. eee een. 2,3

SB UB. 6 BBBVISD. 6 oc cccsecccncvccccccccssccss 9

Kentucky Revised Statutes 436.020. .............. ll

Federal Rules of Criminal Procedure 42(a)........ 15

Federal Rules of Criminal Procedure 42(b)........ 18

Kentucky Rules of Criminal Procedure 11.04(1)... 7

Other Authorities:

C. Wright, Federal Practice and Procedure § 708

SUPREME COURT OF THE UNITED STATES

October Term, 1973

i eo LA

Dante, T. Tayvor, ITI, - - - - Petitioner

Vv.

Joun P. Hayes, Jupar, Jefferson Cir-

cuit Court, enone seen Second :

Division, - : - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

Petitioner prays that a writ of certiorari issue to

review the judgment herein of the Court of Appeals

of Kentucky entered in the above entitled case on

March 23, 1973, petition for. rehearing denied on

June 15, 1973.

CITATION TO OPINION BELOW

The opinion of the Court of Appeals is reported

at 494 S. W. 2d 737 and is printed in the Appendix,

infra, pp. 33-49.

JURISDICTION

The judgment of the Court of Appeals of Ken-

tucky was entered on March 23, 1973. A petition for

rehearing was denied on June 15, 1973. The execution

of the mandate was stayed on June 15, 1973, for ,

period of 90 days to enable the petitioner to seek review

of the decision in this Court. The jurisdiction of this

Court is invoked under 28 U.S.C. section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment VI

**Tn all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which dis.

trict shall have been previously ascertained by

law, and to be informed of the nature and cause of

the accusation; to be confronted with the Wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.”’

United States Constitution, Amendment XTV

**. . . nor shall any State deprive any per-

son of life, liberty or property, without due process

of law. . . .”

QUESTIONS PRESENTED

1. When a trial judge summarily imposes con-

secutive sentences on eight counts of contempt aggre-

gating four and one-half years’ imprisonment, includ-

ing sentences of one year’s imprisonment on two counts,

whether he or the appellate court may subsequently,

in order to defeat the alleged contemnor’s right to trial

by jury, reduce the. sentences so that the sentence on

3

no one count exceeds six months’ imprisonment and

direct that the sentences run concurrently for a total

of six months’ imprisonment?

2. When alleged contempts have been committed

by an attorney in the presence of the trial judge and

the trial judge proceeds summarily to punish for con-

tempt, whether due process requires that the attorney

be given some opportunity to be heard in defense or

mitigation before he is finally adjudged guilty and sen-

tence is imposed ?

3. Whether, in the circumstances of this case, the

trial judge could impartially sit in judgment on multi-

ple contempt charges against the petitioner?

4. Whether the conduct of the petitioner that

- formed the basis of the contempt charges can be made

punishable as criminal contempt consistent with the

Sixth Amendment’s guarantee of effective assistance

of counsel and the Fourteenth Amendment’s guarantee

of due process of law?

STATEMENT OF THE CASE*

The petitioner, an attorney, seeks review of the

judgment of the Court of Appeals of Kentucky, en-

tered on March 23, 1973, affirming his conviction for

criminal contempt and imposing a sentence of six

months’ imprisonment. The contempt conviction arose

out of events occurring during the trial of Narvel and

William M. Tinsley on a charge of wilful murder. The

petitioner represented Narvel Tinsley, working with-

*References to the transcript of the trial of Commonwealth v.

Tinsley are indicated by the prefix ‘‘Tr.’’

——

4

out pay. The trial was held before the respondent

(hereinafter referred to as the trial judge) in the Crim.

inal Branch, Second Division, Jefferson Circuit Court,

Louisville, Kentucky, from October 18, 1971, through

October 29, 1971.

The defendants, young black men, were accused of

killing two white police officers. The trial attracted a

great deal of press and public attention, and was hotly

contested. At various times during the trial the trial]

judge informed the petitionrthat he was in contempt.

He did not, however, specify what the charges were,

nor give the petitioner any meaningful opportunity

to respond to the charges. After the first count had

subsequently been changed to a warning, there were

eight counts of contempt. On counts 2 through 5 the

trial judge did permit some discussion about what had

led up to the citation, but it soon drifted into a dis-

cussion of the substantive issues. On counts 6 and 9

the trial judge simply informed the petitioner that he

was in contempt (Tr. 2016, 2172). He permitted the

petitioner to make a response for the record on count 7,

but then directed the court reporter not to put the

response in the record (Tr. 2032). He specifically

refused to allow the petitioner to make a response for

the record on count 8 (Tr. 2069). At no time during

the trial did he impose punishment on any of the counts.

At the conclusion of the trial, after the jury had

returned its verdict, finding both defendants guilty

and sentencing them to death, but while the jury was

still in the box, the following colloquy occurred:

_—

5

“The Court: Mr. Taylor, the Court has some-

thing to take up-with you, sir, at this time.

Mr. Taylor: Well, I’ll be right here, Judge.

The Court: I’ve for two weeks sit here and

listen to you. Now, you’re going to listen to me.

Stand right here, sir.

For two weeks I’ve seen you put on the worst

display I’ve ever seen an attorney in my two years

of this court and 15 years of practicing law.*

You’ve quoted that you couldn’t do it-any other

way. You know our court system is completely

based upon, particularly criminal law, the Doctrine

of Reasonable Doubt. That’s exactly what it

means, reason. It doesn’t mean that it’s based

upon deceit; it doesn’t mean that it’s based upon

trickery ; it doesn’t mean it’s based upon planned

confusion.

Sometimes I wonder really what your motive is,

if you’re really interested in the justice of your

client, or if you have some ulterior motive, if

you’re interested in Dan Taylor or Narvel Tinsley.

It’s a shame that this court has to do some-

thing that the Bar Association of this State should

have done a long time ago.

As far as a lawyer is concerned, you’re not.

I want the jury to hear this; I want the law stu-

dents of this community to hear this, that you’re

not the rule, you’re the exception to the rule.—

Mr. Taylor: (Interrupting) Thank you.

The Court: I want them to understand that

your actions should not be their actions because

this is not the way that a court is conducted. This

*Of interest is the fact that the bulk of this fifteen years was

spent either as a Special Agent for F.B.I., or as an Assistant Com-

monwealth’s Attorney (Prosecutor) in Louisville,

7

6

is not the way an officer of a court should conduet

itself.

Mr. Taylor: I would respond to you, sir—

The Court: (Interrupting) You’re not re.

sponding to me on anything.

Mr. Taylor: (Interrupting) Oh yes, I will.

The Court: Yes, you’re not, either.

Mr. Taylor: Yes, I will.

The Court: The sentence is on Count One—

Mr. Taylor: (Interrupting) Unless you intend

to gag me—

The Court: (Interrupting) I’ll do that—

Mr. Taylor: (Interposing) My lawyers will

respond to you—

The Court: (Interposing) 1|’ll do that, sir.

Mr. Taylor: My lawyers will respond to you,

sir.

The Court: You be quiet, or you’ll—there will

be some more contempts—

Mr. Taylor: (Interrupting) No, you heard

what I said. |

The Court: I have you on nine counts. First |

Count, 30 days in jail; Second Count, 60 days in —

jail, Third Count, 90 days in jail; Fourth Count, |

six months in jail; Fifth Count, six months in jail;

Sixth Count, six months in jail; Seventh Count,

six months in jail; Eighth Count, one year in

jail; Ninth Count, one year in jail, all to run

consecutive. .

Take him away.

Mr. Taylor: We will answer you in court.

The Court: I’d be glad to see you’’ (Appendix,

infra, pp. 58-59).

At the conclusion of this colloquy, the petitioner was

placed in the custody of peace officers and taken to the

Louisville City Jail. The trial judge refused to mak

7

himself available to petitioner’s counsel for the pur-

pose of setting bail, and a bail hearing had to be or-

dered by the Court of Appeals of Kentucky. The trial

judge refused to allow the petitioner to be present at

the hearing, and also denied bail. Bail was finally

ordered by the Kentucky Court of Appeals, and the

petitioner filled same, and was released. On Novem-

ber 4, 1971, the trial judge entered an order prohibit-

ing the petitioner from ‘‘further practice of law in

this Court.”’

After the petitioner had filed his appeal in the

Court of Appeals of Kentucky, the trial judge, weeks

later, moved the Court of Appeals for permission to

correct the judgment, and his motion was granted over

the objection of the petitioner. In the corrected judg-

ment the trial judge stated that the first count of con-

tempt should be changed to a warning, and he reduced

the sentence of one year’s imprisonment imposed on

count 8 and on count 9 to a sentence of six months’

imprisonment on each count. He then set forth the

sentences on each of the remaining counts, six of which

were punished by six mouths in jail, one of which was

punished by 60 days in jail and one of which was pun- |

ished by 90 days in jail. He did not specifically state

that the sentences were to run consecutively, as lie did

when imposing sentence from the bench, but he also

did not state that they were to run concurrently’ (Ap-

pendix, infra, pp. 53-57).

‘Under Kentucky Rules of Criminal Procedure 11.04(1), the

trial judge must specify in the judgment whether two or more

sentences are to be served concurrently or consecutively, and if the

(Footnote continued on following page.)

ag

8

In his appeal to the Court of Appeals the petitioner

raised all of the issues presented in this Petition, and

some others, as well. Specifically, he contended that

under the Sixth Amendment he was entitled to a trial

before a jury on the contempt charges, that his due

process rights were violated because he was not given

a full and fair opportunity to be heard in defense or

mitigation and because the trial judge could not im.

partially sit in judgment on the charges, and that the

conduct that formed the basis of the charges against

him could not be made punishable as criminal con-

tempt consistent with due process of law and with the

Sixth Amendment’s guarantee of the effective assist-

ance of counsel. He also raised various state law ques-

tions. The Court of Appeals held that the order

prohibiting the petitioner from the practice of law in

the Second Division (i.e. the Court of Respondent)

was improper under state law and set it aside. With

respect to the petititoner’s contention that he was en-

titled to a jury trial on the contempt charges, the Court

held that the sentences should now be served concur-

rently rather than consecutively, and that since the

total sentence would not then exceed six months, the

petitioner was not entitled to a jury trial. In all other

respects it affirmed the conviction and rejected the

petitioner’s Constitutional contentions. Petitioner’s

Petition for Rehearing to the Court of Appeals was

denied on June 15, 1973, without comment.

judgment does not provide otherwise, sentences are construed to run

consecutively. Beasley v. Wingo, Ky., 432 S. W. 2d 413 (1968).

Under Kentucky law the question of whether sentences should ru

consecutively is within the exclusive discretion of the trial judge.

McBride v. Commonwealth, Ky., 432 S. W. 2d 410 (1968).

REASONS FOR GRANTING THE WRIT

I.

This Court should grant certiorari to determine the sub-

stantial question of whether an alleged contemmor’s right

to trial by jury on multiple contempt charges can be de-

feated by the subsequent actions of the trial judge or the

reviewing court in reducing or modifying the sentence so

that the total sentence imposed does not exceed six months’

imprisonment, thereby converting the offense into a “petty

offense,” within the meaning of the trial by jury guarantee.

When the trial judge ordered the peace officers to

“take him away,”’ the petitioner faced a sentence of

54 months’ imprisonment, including one year on each

of two counts. As the trial judge subsequently real-

‘ized, he could not, without the intervention of a jury,

impose a sentence of one year’s imprisonment on those

counts, Baldwin v. New York, 399 U. 8. 66 (1970), and

as he specifically stated, in order that the petitioner’s

Sixth Amendment right to trial by jury not come into

play, he reduced the sentences on those counts to six

months’ each. Assuming that the sentences were to run

consecutively, the petitioner then faced 41 months’ im-

prisonment, and he argued on his appeal that such a

sentence could not be imposed without the intervention

of a jury.

The trial judge attempted to meet this argument in

his brief by arguing that so long as the sentence on no

one count exceeded six months (which he accomplished

_ by reducing the sentences on counts 8 and 9) there was

no right to trial by jury, irrespective of the aggregate

amount of the sentence. This view was rejected in

a

10

United States v. Seale, 461 F. 2d 345 (7th Cir. 1972),

where as here, sentence was not imposed until after

the trial, and the Kentucky Court of Appeals has not

only indicated agreement with the approach in Seale,

but has specifically held that there cannot be incarcer-

ation for more than six months for contempt of court

‘except upon the unanimous verdict of a jury under

instructions including the reasonable doubt protection,

as in comparable criminal cases.’’ Local No. 1667,

United Auto Workers v. Kawneer Company, Inc., Ky.,

490 S. W. 2d 747 (1973). In order to bring the peti-

tioner’s case within the ‘‘six month rule,’’ the Court

of Appeals, absolutely gratuitously, directed that the

sentences be served concurrently rather than consecu-

tively,? and then held that the petitioner was not en-

titled to a jury trial on the charges.

This Court should grant certiorari to make it clear

what criteria apply in determining whether a particu-

lar contempt proceeding constitutes a ‘‘petty’’ or “‘seri-

ous’’ offense within the meaning of the trial by jury

2In so doing the Court disregarded either its prior holding to

the effect that if the judgment does not provide otherwise, multiple

sentences are construed to run consecutively, Beasley v. Wingo,

Ky., 482 8. W. 2d 413 (1968), or its prior holding to the effect that

whether sentences are to run consecutively or concurrently is

within the exclusive discretion of the trial judge. McBride v.

Commonwealth, Ky., 432 S. W. 2d 410 (1968). It is also interest-

ing to note that while the trial judge originally argued that he had

the power to impose sentences aggregating 41 months’ imprison-

ment so long as the sentence on no one count exceeded six months

(Brief for Respondent-Appellee, pp. 2, 17), in response to the peti-

tioner’s Petition for Rehearing, he argued that he had intended to

limit the total sentence to six months in the corrected judgment.

(Response to Petition for Rehearing, p. 1). What has occurred

here is quite obvious—the sentences were ordered to run concur-

rently so as to defeat the petitioner’s claim to a jury trial.

”

guarantee, and whether the right to trial by jury can

be defeated by the subsequent actions of the trial judge

or reviewing court in modifying the total sentence to

a maximum of six months’ imprisonment. This Court

has stated that in determining whether a particular

offense is “‘petty,”’ it has sought ‘‘objective indications

of the seriousness with which society regards the of-

fense.’’ Frank v. United States, 395 U. 8. 147, 148

(1969). But there are problems in applying this test

to criminal contempt because of the great range of con-

duct that may be considered ‘‘contemptuous”’ and be-

cause of the general absence of maximum penalties for

the offense. For this reason, this Court has held that

in prosecutions for criminal contempt where no maxi-

_ mum penalty is authorized, ‘“The severity of the pen-

alty actually imposed is the best indication of the ser-

jousness of the particular offense,’’ Frank v. United

States, supra, 395 U. S. at 149, and in light of Baldwin

y. New York, supra, where the penalty actually im-

posed exceeds six months’ imprisonment, there is the

right to a jury trial. But it has not held that the

severity of the penalty actually imposed is the only

indication of the seriousness of the offense.

The Kentucky legislature has clearly indicated its

view that contempt should be regarded as a serious of-

fense in that State by limiting the punishment that can

be imposed for contempt without the intervention of

a jury to a maximum fine of $30 and imprisonment for

30 hours. Kentucky Revised Statutes 436.020. In the

ease at bar the petitioner relied on this statute to con-

tend that he was entitled to a jury trial under state

11

12

law as well as under the Sixth Amendment. The Court

of Appeals, however, held that the statute was invalid

under the State Constitution, and that the power of the

trial judge to impose punishment for contempt was

unlimited. 494 S. W. 2d at 745. See also Arnett y,

Meade, Ky., 462 8. W. 2d 940 (1971).

The legislative determination that contempt is a

serious offense, albeit that it is one contained in a stat-

ute declared invalid under state law, certainly is an

‘objective indication’’ of the seriousness with which

the offense is regarded in Kentucky. More impor-

tantly, the allegedly contemptuous conduct with which

. the petitioner was charged was deemed serious enough

by the trial judge so that he originally imposed a one

year prison term on each of two counts and imposed

consecutive sentences on all of the counts aggregating

54 months’ imprisonment. The seriousness with which

he viewed the purported offense is further evidenced

by his extreme statements from the bench at the time

he sentenced the petitioner, his refusal to admit the

petitioner to bail pending appeal or even to hold a bail

hearing, and his entry of an invalid order prohibiting

the petitioner from practicing in the Second Division.

The Court of Appeals, while holding that the peti-

tioner had only been convicted of a ‘‘petty’’ offense

within the meaning of the trial by jury guarantee, said

of the allegedly contemptuous conduct that it was

‘“‘such as to place on trial the entire judicial system of

the Commonwealth and those judges sworn to uphold

its Constitution and laws and thereby assure defend-

ants a fair, orderly and speedy trial.’’ 494 S. W. 2d

13

at 741. The petitioner, of course, would most vigor-

ously dispute this characterization of his conduct, and

contend that he did nothing more than zealously de-

fend the rights of his client charged ‘with a capital

offense, but the fact that his conduct was so character-

ized by the Court of Appeals, coupled with the severity

of the sentence originally imposed, certainly supplies

the ‘‘objective criteria reflecting the seriousness of the

offense,’’ Frank v. United States, supra, within the

meaning of the trial by jury guarantee.

What has happened here is that the Court of Ap-

peals has read this Court’s decisions in Framk v. United

States and Baldwin v. New York, supra, as setting forth

a “six month rule’’ and holding that whenever the sen-

' tence actually imposed is less than six months, regard-

less of other “‘objective criteria reflecting the serious-

ness of the offense’’, there is no right to a jury trial.

This Court did not so hold in those cases, and certiorari

should be granted to determine whether ‘‘objective cri-

teria reflecting the seriousness of the offense’’ can be

disregarded where the sentence actually imposed is less

than six months. Certiorari should also be granted to

determine whether the right to trial by jury can be de-

feated by the subsequent modification of the sentence

on the part of the trial judge or reviewing court to

bring it within the purported ‘‘six month rule.’ Here

the allegedly contemptuous conduct was deemed seri-

Compare Mitchell v. Fiore, 470 F. 2d 1149 (3rd Cir. 1972),

where the trial judge viewed the contempt as ‘‘petty’’ and imposed

a $10,000 fine for ‘‘civil contempt.’’ The appellate court held that

the imposition of the fine was punitive, so that the contemnor would

have been entitled to a jury trial if it had been allowed to stand,

but instead vacated the fine.

l¢

ous enough by the trial judge to warrant the imposi-

tion of sentences of one year’s imprisonment on each

of two counts and consecutive sentences aggregating 54

month’s imprisonment. He reduced the one year sen-

tences to six month’s each for the express purpose of

defeating the petitioner’s right to a jury trial, and the

Court of Appeals ruled that the sentences had to ru

concurrently, again for the purpose of denying the pe-

titioner trial before a jury on the charges. Certiorari

should be granted to determine whether the Sixth

Amendment’s trial by jury guarantee can be dealt with

in so cavalier a manner.

This case presents substantial questions as to the

criteria for determining what constitutes ‘‘serious”

contempt within the meaning of the trial by jury

guarantee, and as to whether the Sixth Amendment's

protection can be lost by subsequent modification of

the sentence originally imposed to bring it within a

purported ‘‘six month rule.’’ Certiorari should be

granted by this Court to resolve these questions.

15

I.

This Court should grant certiorari to determine the sub-

stantial question of whether due process requires that when

a trial judge proceeds summarily to punish for alleged con-

tempts committed in his presence, the contemnor must be

given some oportunity to be heard in defense or mitiga-

tion before he is finally adjudged guilty and sentence is

imposed.

This Court has not, because it has not been pre-

sented with the precise question, specifically held

whether due process requires that when a trial judge

proceeds summarily to punish for alleged contempts

committed in his presence, the contemnor must be given

some opportunity to be heard in defense or mitigation

before he is finally adjudged guilty and sentence is

imposed. The same question may exist in a non-Con-

stitutional context with respect to summary punish-

ment of contempts under Federal Rules of Criminal

Procedure 42(a), since it is not specifically provided

in the rules that the alleged contemnor is entitled to

be heard. See United States v. Galante, 298 F. 2d 72

(2d Cir. 1962) ; C. Wright, Federal Practice and Pro-

cedure § 708 (1969).

The likely reason that this precise question has not

been presented heretofore is that in most instances it

may be expected that the judge will give the person

charged some opportunity to be heard in defense or

mitigation. As this Court stated in Groppi v. Leslie,

404 U. S. 496, 504 (1972):

‘*Where a courts acts immediately to punish

for contemptuous conduct committed under its eye,

16

the contemnor is present, of course. There is then

no question of identity, nor is a hearing in a formal]

sense necessary because the judge has personally

seen the offense and is acting on the basis of his

own observations. Moreover, in such a situation, -

the contemnor has normally been given an oppor.

tunity to speak in his own behalf in the nature of

a right of allocution.’’ (Emphasis added.)

* In Sacher v. United States, 343 U.S. 1 (1952), per.

haps the most ‘‘extreme’’ holding with respect to a

court’s power to punish summarily for contempt, the

contemnors were given an opportunity to speak in their

defense, and as this Court noted, ‘‘ Although he imposed

sentence before hearing the contemnors, the trial judge

would, no doubt have modified his action had their

statements been persuasive.’’ Groppi v. Leslie, supra,

404 U.S. at 506, n. 11. See also Levine v. United States,

362 U. S. 610, 613-614 (1960) ; Brown v. United States,

359 U. S. 41, 52 (1959). Because the opportunity to

speak in the nature of a right of allocution is generally

given and because the exercise of the summary con-

tempt power has been strictly limited, see e.g., Johnson

v. Mississippi, 403 U. 8. 212 (1971), it has not hereto-

fore been necessary for this Court to consider the pre-

cise question of whether some opportunity to be heard

in defense or mitigation in summary contempt proceed-

ings is required by due process of law. In the Ken-

tucky Court of Appeals the petitioner proceeded on

the assumption that this was required, since reasonable

notice of a charge and the opportunity to be heard in

defense before punishment is imposed are ‘‘basic in

—_

17

our system of jurisprudence.’’ Jn re Oliver, 333 U. 8.

257, 273 (1948). However, the Court of Appeals re-

fused to accept this assumption, and rejected the peti-

tioner’s argument that his due process rights had been

violated in this respect. It merely noted that the pe-

titioner was informed by the trial judge that he was

in contempt immediately following the charged act so

that, ‘‘The contempt citations and the sentences com-

ing at the end of the trial were not and could not have

been a surprise,’’ 494 S. W. 2d at 741-2. The imposi-

tion of a contempt sentence without offering the con-

temnor the opportunity to be heard in United States

v. Galante, supra, and the language in some state court

decisions indicating that there is no right to be heard

_in ease of summary contempt, see e.g., People v. Carr,

3 Ill. App. 3d 227, 278 N. E. 2d 839, 840 (1971), lend

further impetus to the petitioner’s position that it is

necessary for this Court to precisely hold that there

must be some opportunity to be heard in defense or

mitigation before punishment for criminal contempt

may be summarily imposed.

At no time was the. petitioner informed of the

charges against him or given any meaningful oppor-

tunity to be heard in defense or mitigation. At various

times during the trial the trial judge told the petitioner

that he was in contempt, but he did not specify what

the charge was nor impose any punishment at the time.

On counts 2 through 5 he did permit some discussion

about the allegedly contemptuous conduct, but it was

intertwined with a discussion of the substantive issues.

‘On counts 6 and 9 the trial judge simply informed the

18

petitioner at the bench that he was in contempt. He

allowed the petitioner to make a response for the ree.

ord on count 7, but then directed the court reporter not

to put it in the record, and specifically refused to per-

mit the petitioner to make a response for the record

on count 8. At the end of the trial he summoned the

petitioner before the bench, attacked his integrity and

professional qualifications, and without giving him

any opportunity to speak a word in his defense, reeled

off sentences on nine counts of contempt (later changed

to eight), aggregating 54 months’ imprisonment. When

the petitioner pleaded with the trial judge for the op-

portunity to speak, the trial judge threatened to gag

him, and after imposing sentence, directed to bailiff

to ‘‘take him away.’’ It should also be emphasized

that the trial judge never specified what the charges

were until some five months later when the petitioner

had appealed his case and the trial judge obtained per-

mission to file a ‘‘corrected judgment.”’

It is precisely because the power to punish sum-

marily for contempt can be exercised in the way it was

here, and still be sustained by the highest court of a

state, that it is necessary for this Court to make it

clear that some rudimentary form of due process ap-

plies to summary contempt proceedings. There is no

contention that the opportunity to be heard in response

to a charge of direct contempt committed in the court’s

presence is the same as the full-scale hearing required

when the alleged contempt is committed outside of the

Court’s presence. C.f. Johnson v. Mississippi, supra;

Federal Rules of Criminal Procedure 42(b). What is

19

contended is that the power to punish summarily for

allegedly contemptuous conduct committed in the pres-

ence of the court does not include the power to deny

the contemnor any meaningful opportunity to be heard

at all in defense or mitigation. The contemnor, it is

submitted, is entitled to be informed of the precise

charge of contempt that is being made against him,

and to present his defense to the charge and matters

in mitigation. He is also entitled to a ruling on the

charge and to be informed of the punishment. If a

person charged with a minor offense were treated in

the manner that the petitioner was treated here, there

would be no doubt but that there had been a flagrant

denial of due process of law. An attorney, who may

_ suffer adverse professional consequences as well as

imprisonment from a finding of contempt, surely

should be entitled to the same due process, and all sem-

blance of due process should not be disregarded merely

because the trial judge is acting summarily.

This Court should grant certiorari to make it clear

whether or not some rudimentary form of due process

is required when a trial judge acts summarily to punish

for contempt.

20

IT.

The holding of the Court below that the trial judge

could impartially sit in judgment on the multiple contempt

charges against the petitioner is clearly inconsistent with

the decisions of this Court on the question of judicial dis.

qualification in contempt proceedings.

Although the trial judge cited the petitioner for

contempt at various times during the trial, he did not

act to impose punishment until after the trial had been

completed. Thus, there was no question as to the neces-

sity of ‘‘instant punishment,’’ and as the Court of

Appeals recognized, if the trial judge could not im-

partially sit in judgment on the contempt charges, the

petitioner’s conviction would have had to have been

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

(1971). However, the Court of Appeals held that the

trial judge was not disqualified, and that holding, it is

submitted, is patently inconsistent with the decisions

of this Court on the question of judicial disqualifica-

tion in contempt proceedings.

It is well-settled that the trial judge is disqualified

to sit in contempt proceedings where he has become

personally embroiled in controversy with the alleged

contemnor, such as where he is an “‘activist’’ seeking

combat, Offutt v. United States, 348 U. S. 11 (1954),

where he has been the victim of a ‘‘personal attack,”’

Mayberry v. Pennsylvania, supra, where for any rea-

son he may be biased against the alleged contemnor,

Johnson v. Mississippi, 403 U. S. 212 (1971), or where

he has adopted an adversary posture with respect to

the alleged contemnor. United States v. Meyer, 462

21

F, 2d 827 (D.C. Cir. 1972). In the circumstances of

this case, for the Kentucky Court of Appeals to hold

that the trial judge was not disqualified from sitting

in judgment on the contempt charges against the peti-

tioner evidences a complete disregard of well-settled

principles of law that have been established by this

Court.

The animus and hostility of the trial judge toward

the petitioner is amply demonstrated by his conduct

and statements throughout the trial and thereafter.

To say the least, the interchanges between court and

counsel during the trial ‘‘were marked by expressions

and revealed an attitude which hardly reflected the

restraints of conventional judicial demeanor.” Offutt

v. United States, supra, 348 U. S. at 12. From the

beginning the trial judge cast aspersions on the peti-

tioner’s character and ability, and accused him of im-

proper motives. While the voir dire was going on, the

trial judge stated that he was going to take it over

and said to the petitioner, ‘‘I think you’re putting on

a show. That’s my opinion’ (Tr. 348). During a

discussion in chambers about wrangling between at-

torneys, he stated in reference to the petitioner:

“. . « you all were talking.and I can’t blame the

guy too much for that, but on the other hand, he is

getting away from the questions and knowing him, if

you give him an inch, he’ll take a mile. I might as

well sit on him right now”’ (Tr. 546). In another in-

terchange the trial judge again insisted on indulging

in personalities:

my

22

‘Mr. Taylor: Does Your Honor understand

that my purpose is to defend my case?

The Court: I think that’s probably what

you’re here for, I’m not sure”’ (Tr. 1364).

And in still another interchange when the petitioner

attempted to explain his basis for making an objection:

“‘Mr. Taylor: The objection is that he uses the

word ‘also’ as inferring that he’s got these great

confessions.

The Court: Don’t go through all those con-

figurations and put on an act’’ (Tr. 1860).

The trial judge also accused the petitioner of ‘‘trying

to make every case a political trial,’’ and in a totally

unprecedented move, directed that the petitioner pre-

pare a list of every witness he planned to call within

fifteen minutes and summarily ruled on whether those

witneesses would be permitted to testify (Tr. 1908-

1910).

The effect of the trial judge’s hostility toward the

petitioner on his imposition of the sentences for con-

tempt is graphically illustrated by the following in-

terchange :

“Mr. Taylor. Thank you. Now, may I say,

additionally, I have serious doubts as to the legal

correctness of the order and since we have, I have,

I don’t know, five mouths of my life wrapped up

in this case, and maybe more than that—

The Court: (interrupting) Before it’s over,

you might have a lot more than that.

Mr. Taylor: Would the Court care to amplify

on the meaning of that?

23

The Court: The Court just made a statement.

Mr. Taylor: Sir, I didn’t—

The Court: (interrupting) The Court just

made a statement.

Mr. Taylor: Yes, sir, and I asked if the Court

would care to expand on the meaning of—

* * * * * * *

The Court: (interrupting) I don’t have to

explain my comments.

Mr. Taylor: I see. I’m requesting that you

reconsider and that you adjourn until tomorrow

and give me an opportunity to get before our re-

viewing Court for a Writ of Mandamus—

The Court: (interrupting) Overruled.

Mr. Taylor: I wonder if I might finish my

sentence before you overrule—

The Court: (interrupting) It’s overruled’’

(Tr. 1957-8).

It cannot be doubted that in the case at bar the con-

tempts charged were ‘‘entangled with the judge’s per-

sonal feeling against the lawyer.’’ Offutt v. United

States, supra, 348 U. S. at 14. Marked personal feel-

ings were present, at least on the part of the trial

judge, and as the above examples indicate, he clearly

was an ‘‘activist seeking combat.’’ (In its Opinion,

the Kentucky Court of Appeals characterized petition-

er’s conduct as being ‘‘polite.’’)

Moreover, while it is indeed true, as the Court of

Appeals found, that the petitioner did not launch a

personal attack. against the trial judge, the fact re-

mains that the trial judge perceived himself as the

victim of such an attack. This appears most clearly

—

24

in the contempt citations themselves and in his ‘‘intro-

ductory remarks.’’ The Court of Appeals was also

incorrect in saying that the petitioner did not attack

the trial judge’s ‘‘integrity or ability.’’ Quite to the

contrary, in attempting to defend his client to the best

of his ability, it was painfully necessary for the peti-

tioner to accuse the trial judge of denying his client’s

right to a public trial (Tr. 1895), and of acting on the

basis of rancor in ruling that race was not an issue in

the case (Tr. 1968). He also sought a delay in the case

so that he could seek a writ of mandamus from the

Court of Appeals to prevent the trial judge from pro-

ceeding further in the case (Tr. 1957). Clearly, the

petitioner charged that the trial judge was acting un-

fairly, which is certainly an attack, albeit a necessary

one, on his ‘‘integrity or ability.’’ A trial judge may

be disqualified to proceed against an alleged contemnor

when his integrity or ability has been called into ques-

tion, such as where a party or attorney has charged the

judge with bias or unfairness, Holt v. Virginia, 381 -

U. S. 131 (1965) ; United States v. Meyer, supra; In re

Dellinger, 461 F. 2d 389 (7th Cir. 1972). That charge

was made here, and in such circumstances, the case of

Ungar v. Sarafite, 376 U. 8S. 575 (1964), relied on by

the Court of Appeals to hold that the trial judge was

not disqualified from sitting in judgment on contempt

charges against the petitioner, is clearly inapplicable.

See the discussion in United States v. Meyer, supra,

462 F. 2d at 845.

Finally, the trial judge is disqualified from sitting

in judgment on contempt charges, where he has

25

“adopted an adversary posture with respect to the

alleged contemnor.”’ United States v. Meyer, supra,

462 F'. 2d at 862. Whatever else may be said about this

case, it cannot be denied that the trial judge adopted

an adversary posture with respect to the petitioner.

In the view of the Court of Appeals, the trial judge

“appeared to be continuously on the defensive in his

effort to contain Taylor to the point where the defend-

ants would be assured a fair trial.” 494 S. W. 2d

at 742. While the petitioner would dispute this

characterization of what the trial judge was doing, it is

clear that he and the trial judge were perceived by the

Court of Appeals as being in an adversary posture,

and this being so, the trial judge was certainly dis-

- qualified from sitting in judgment on the contempt

charges against him.

If ‘factions speak louder than words,’” the bias of

the trial judge toward the petitioner, and his obvious

lack of impartiality, is manifestly demonstrated by his

unprecedented order that the petitioner produce a list

of all the defense witnesses within fifteen minutes, and

his summarily deciding in advance that many of them

would not be permitted to testify. Consider the fol-

lowing :

“The Court: What’s Hyde got to do with this?

Mr. Taylor: Quite a bit.

The Court: He just was at that time Chief

of Police?

Mr. Taylor: He was in charge of the whole

thing.

The Court: Strike him’ (Tr. 1989).

Further:

“The Court: I am not going to hold up these

proceedings waiting for a witness. If he’s here,

he can testify, if he isn’t, we’ll skip over him”

(Tr. 2036-2037). (Emphasis added.)

The Court’s bias is further manifested by his in-

valid order prohibiting the petitioner from the further

practice of law in the Second Division of Jefferson

Circuit Court. It is still further manifested by his

refusal to admit the petitioner to bail, or to even hold

a bail hearing (at which the petitioner was not per-

mitted to be present) until ordered to do so by the

Court of Appeals.

But above all else there is the behavior of the trial

judge at the conclusion of the trial when he finally

adjudged the petitioner guilty of the contempts charged

and imposed consecutive sentences aggregating four

and one-half years’ imprisonment. . The trial judge not

only accused the petitioner of improper motives, not

only criticized the bar association for not having disci-

plined the petitioner ‘‘years ago,’’ not only said that

he wanted the members of the jury and the law stu-

dents ‘‘of the community’’ to hear his remarks, but

refused to allow the petitioner to speak a word in his

defense, threatened to gag him if he persisted in trying

to do so, and directed the bailiff to ‘‘take him away.”

The utter absence of any seniblance of impartiality is

reflected in the statement he made when he began to

impose sentence, ‘‘I have you on nine counts.’”’ (Enm-

phasis added.) The Court of Appeals referred to the

a

27

trial judge’s remarks as ‘‘inappropriate,’’ and con-

ceded that they were ‘‘somewhat similar to the state-

ments made in Offutt.’”” 494 S. W. 2d at 744. But

then went on to say that they did not clearly demon-

strate bias. If those remarks and the judge’s behavior

at the time he was sentencing the petitioner to four and

one-half years’ imprisonment do not demontrate bias,

it may be asked what does. The Court went on to say

that ‘‘in light of the obvious guilt of Taylor these re-

marks were not such a showing of bias as to require

the disqualification of the judge.’’ 494 S. W. 2d at 745.

It is difficult to see what the supposed ‘‘obvious guilt’’

of the petitioner has to do with the bias of the judge.

If the judge has demonstrated his bias, as he clearly

did here, he is not capable of maintaining ‘‘that calm

detachment necessary for fair adjudication,’’ as re-

quired by Mayberry v. Pennsylvania, supra, 400 U. S.

at 465. <A clearer case of guilt than was present in

Mayberry cannot be imagined, 400 U. S. at 462-463,

but the guilt of the contemnor had nothing to do with

the ability of the judge to impartially determine guilt,

and, more importantly, to impose sentence.

Trial before an unbiased judge is essential to due

process of law, Bloom v. Illinois, 391 U. S. 194, 205

(1968) and the statements and behavior of the trial

judge in the case at bar demonstrate beyond per-

adventure the bias and hostility that he bore toward §~

the petitioner. For the Court of Appeals to-hold that |.

in the circumstances of this case the trial judge was |

not disqualified from sitting in judgment ‘on the con-

tempt charges against the petitioner is to disregard

; 2 yea ore

PN ree we P

' 233

completely-the applicable principles of law established

by this Court. The flagrant denial of due process that

has thus been sanctioned calls for the granting of

certiorari by this Court and the reversal of the peti-

tioner’s conviction.

a IV.

This Court should grant certiorari to determine the sub-

stantial question of what conduct on the part of an attorney

engaged in zealous representation of his client can be made

punishable as criminal contempt on the ground that it has

created a material obstruction to the administration of

justice.

This Court has held that an attorney is entitled to

much latitude in vigorously conducting a client’s cause,

and that a lawyer cannot be convicted for contempt of

court unless he ‘‘in some way creates an obstruction

which blocks the trial judge in the performance of his

judicial duty.”” In re McConnell, 370 U. S. 230, 236

(1962). It has also held that mere ‘“‘disrepect’’ toward

the person of the trial judge cannot constitute criminal

contempt. In re Little, 404 U. S. 553 (1972). The

protection afforded an attorney in this respect must be

related to the Sixth Amendment’s guarantee of the

effective assistance of counsel, and is as much for the

~ benefit of the client as for the attorney. It has been

said that in the defense of his client an attorney has

the right to be ‘‘persistent, vociferous, contentious, and

imposing, even to the point of appearing obnoxious

when acting on his client’s behalf.’”’ In re Dellinger,

461 F. 2d 389, 400 (7th Cir. 1972). But an attorney

29

who conducts a vigorous defense in this manner may

well be perceived as “‘contemptous” by trial judges

who are insecure in their authority, who are not ‘“‘men

of fortitude, able to thrive in a hardy climate,”’ Craig v.

Harney, 331 U. S. 367, 376 (1948), and who are unable

to avoid confusing ‘‘offenses to their sensibilities with

obstruction to the administration of justice.”’ Brown v.

United States, 356 U. S. 148, 153 (1958). In order for

the Sixth Amendment’s; guarantee of the effective

assistance of counsel to be truly meaningful, this Court

must make clear precisely what conduct on the part of

an attorney engaged in the zealous representation of

his client can rise to the level of a ‘‘material obstruc-

tion to the administration of justice” and subject him

to punishment for criminal contempt.

The case at bar is a particularly appropriate one

for this Court to grant review and consider this ques-

tion. Most of the charges against the petitioner involve

an alleged lack of “‘respect’’ shown to the court, and as

can be seen from the‘specification of the charges them-

selves, they raise most strikingly the issue of when a

trial judge has “‘confused offenses to his sensibilities

with obstruction to the administration of justice.”

Brown v. United States, supra. The Court of Appeals

likewise was obsessed with the notion of **respect,’’

and in its opinion stated that even the brief that was

filed on behalf of the petitioner ‘‘in itself demonstrates

something less than complete and total respect for the

judicial system of this Commonwealth.” 494 S. W. 2d

at 741. The Court’s obsession with ‘respect’? caused

it to ignore completely the crucial question of “ma-

30

terial obstruction to the administration of justice,”

In re McConnell, supra, and it appears to be holding

that mere “‘disrespect’’ toward the person of the trial

judge can constitute criminal contempt, in clear dis-

regard of this Court’s decision in In re Little, supra,

The other charges against the petitioner essentially in-

volved a conflict between the petitioner and the trial

judge over whether certain matters were admissible

into evidence and the petitioner’s efforts to redirect a

line of questioning so as to make the evidence sought

to be elicited admissible. There was no showing of

persistent disregard of the court’s rulings, of insistence

on obedience by the court and defiance by the petitioner,

or of any conduct that ‘“‘in some way creates an ob-

struction which blocks the trial judge in the perform-

ance of his judicial duty.’’ In re McConnell, supra. °

The Kentucky Court of Appeals just totally refused

to discuss the specific charges of contempt leveled

against the petitioner, or to demonstrate why the con-

duct alleged in those charges constituted an ‘‘obstrue-

tion to the administration -of justice.’’ Its Opinion

demonstrated a total hiatus in this regard. Instead it

engaged in completely unwarranted assumptions con-

cerning the motivations of the petitioner, and accused

him of having a “‘plan”’ to disrupt the trial. But at no

point did it refer to any evidence in the record that

would ‘support its assumptions concerning the peti-

tioner’s motivation or his purported ‘‘plan.’’* The

*It belies common sense that Petitioner, serving without pay

in a vastly unpopular case, which had already drug on for two

weeks before a Judge of this type, would want to repeat the process,

in future, Saat any veanen WREASDUUER.

31

Kentucky Court of Appeals has clearly acted im-

properly, and has ignored Constitutional criteria, in

upholding the conviction of the petitioner.

It is respectfully submitted that if the conduct for

which the petitioner has been convicted can Constitu-

tionally be made punishable as criminal contempt, the

power of a trial judge to inhibit an attorney in the

vigorous. representation of his client by the threat of

contempt citations will be virtually unlimited. This

will then effect the total emasculation of the criminal

defense Bar, and mean an end to zealous advocacy in

the United States. This case presents the Court with

the opportunity to define precisely what conduct on the

part of an attorney engaged in the zealous representa-

. tion of his client can be made punishable as criminal

contempt, consistent with the Sixth Amendment’s

guarantee of the effective assistance of counsel and the

Fourteenth Amendment’s guarantee of due process of

law, and for this reason certiorari should be granted.

32

CONCLUSION

For the reasons set forth herein, a writ of certiorari

should be granted to review the judgment of the Court

of Appeals of Kentucky.

Respectfully submitted,

Rosert ALLEN SEDLER

Box 862

University Station

Lexington, Kentucky 40506

Doris PETERSON

Morton StTAvis

Center for Constitutional Rights

853 Broadway

New York, New York 10003

Attorneys for Petitioner