Amicus Curiae Brief — Taylor v. Hayes

Ia DE KSEE DY

TABLE OF CONTENTS

PAGES

INTEREST OF THE AMICUS CURIAE ........ 1- 3

SUMMARY OF ARGUMENT .................. 3- 6

IE Oe, ee eee 6-34

INTRODUCTION:

The Summary Nature of the Contempt Power

Should be Foreclosed Because it is Far in Ex-

cess of the Power Necessary to Serve the Ends

IED OE MS ng cee ccc meet ccncee 6-12

I. When an Alleged Contemnor is Sentenced to

Punishment in Excess of the Requisite

Amount to Establish the Contempt as a

Serious Crime, Thereby Guaranteeing the

Defendant the Right to a Trial by Jury on the

Charges, the Trial Judge and the Appellate

Court Should Not Be Permitted to Alter the

Sentence at a Later Time to Foreclose the

Defendant’s Right to a Trial By Jury. ...... 12-19

II. The Constitutional Guarantee of Due Process

of Law Requires That in All Contempt

_ Situations an Alleged Contemnor Must be

Permitted to Speak in Defense or Mitigation

of the Charges Against Him, Including Those

Contempts Committed by an Attorney in the

Presence of the Trial Judge, Before He is Ad-

judged Guilty and Sentence is Imposed. .... 19-25

III. In the Circumstances of This Case the Trial

Judge Could Not Impartially Sit in Judgment

on Multiple Contempt Charges Against the

SEO iter a eae 25-34

i i ek css siya a 6 bk es AG d cone wee 34

TABLE OF AUTHORITIES

Anderson v. Dunn, 6 Wheat 204 (1822)

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

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

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

Bloom v. Illinois, 391 U.S. 194 (1968) 13, 15, 17

Cheff v. Schnackenberg, 384 U.S. 373 (1966) .. 15

Cooke v. United States, 267 U.S. 517 (1925)... 11

In re Dellinger, 461 F.2d 389 (CA 7 1972) 14, 16 <<

_ Duncan v. Louisiana, 391 U.S. 145 (1968)

Escobedo v. Illinois, 378 U.S. 478 (1964)

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

Fuentes v. Shevin, 407 U.S. 65 (1972)

Gideon v. Wainwright, 372:'U.S. 335 (1963) .. ..

Goldberg v. Kelly, 397 U.S. 254 (1970)

Grannis v. Ordean, 324 U.S. 385 (1914)

Green v. United States, 356 U.S. 165 (1958) . 10,

Groppi v. Leslie, 404 U.S. 496 (1972) .

In re Hammersmith, 4 EX. 87, 154 Eng. Rep.

1136 (1849)

Hill v. United States ex rel Weiner, 300 U.S. 105

Illinois v. Allen, 397 U. S. 337 (1970)

The King v. The Chancellor, Masters and

Scholars of the University of Cambridge, 1

STR. 557, 93 Eng. Rep. 698 (1723)

McBride v. Commonwealth, Ky., 482 S.W.2d 410

(1968)

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) 8,27,30

In re Michael, 326 U.S. 224 (1945)

In re. Murchison, 349 U.S. 133 (1955).

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

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

In re Pollard, 5 Moore P.C. (N.S.) 111, 16 Eng.

Row. O07 (0000) roe iken cei ee eeeaes 20

Sacher v. United States, 343 U.S. 1 (1952) .... 28, 29

Samaratunga v. The Queen, (1958) A.C. 424 .. 21

In re Savin, 131 U.S. 267 (1888) .............. &

Shillitani v. United States, 384 U.S. 364 (1966) 11

Taylor'v. Hayes, Ky., 494 S.W.2d 737 (1973) .8, 16, 26

Ex Parte Terry, 128 U.S. 289 (1888) .......... 21

Ungar v. Sarafite, 376 U.S. 575 (1964) ........ 27

United States v. Barnett, 376 U.S. 681 (1964) . 7

United States v. Galante, 289 F.2d 72 (CA 2 1962) 21

United States v. Green, 241 F.2d 631 (CA 2 1957) 7

United States v. Meyer, 462 F.2d 827 (CA DC

. SND ono v5 6044 .b asd be aete sehen ees 22,. 27, 28, 30

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

eceveos 8, 14, 15

Weiss v. Burr, 484 F.2d 973 (CA 9 1973) ..... 22, 23

Wheeler v. Montgomery, 397 U.S. 280 (1970) .. 25

Miscellaneous Authorities —

Black's Law Dictionary, 4th Edition, Revised

558 lis 6 edn eavseenaen esa xi0k es 25 20

_ Disorder in the Court, the Report of the Associa-

tion of the Bar of the City of New York,

Special Committee on Courtroom Conduct |

COU xen tow shade cderastvwedinheceneaes 9, 10

Edward Livingston Works, Vol. I (1873) ....... 7

The Federal Prison System - 1964, Hearing before

the Subcommittee on National Penitentiaries

of the Senate Committee on the Judiciary,

88th Cong. 2d Sess. (Jan. 22, 1964), p. 10... 8

Pekelis, Legal Techniques and Political

Ideologies, 41 Mich. L. Rev. 665 (1943)

SUPREME COURT OF THE UNITED STATES

No. 73-473

DANIEL T. TAYLOR, III Petitioner

versus

JOHN P. HAYES, JUDGE

JEFFERSON CIRCUIT COURT

CRIMINAL BRANCH, SECOND

DIVISION Respondent

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

|

BRIEF OF THE

LOUISVILLE BAR ‘ASSOCIATION

AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

The Louisville Bar Association was established in

1900, originally comprising a small group of attorneys in

the local community. Over the years, the Association

has gradually grown to a membership numbering over

1,000 attorneys and judges from the entire metropolitan

area. The purposes of the Association, as enumerated in

its constitution, are to promote and maintain high stan-

dards for the legal profession; to promote legal educa-

2

tion; to cultivate association and acquaintance among

the members of the Bar; to increase their usefulness in

the administration of justice; and to promote legal and

judicial reforms.

In furtherance of these goals and in the interest of its

membership, the Association submits this brief. This

case is one that arises out of the use by the trial judge of

the Summary Contempt Power, a power which stands as

an anomaly in our law, wherein the accused is often

denied normal Constitutional rights that are guaranteed

to criminal defendants in virtually all other types of

crimes. This summary power was used against the

Petitioner to obtain his conviction. However, the

questions raised in this Appeal do not concern Daniel

Taylor alone. Since all persons and particularly at-

torneys, who are ethically bound to provide effective

counsel for their clients, are subject to this nearly

despotic power, this case involves questions of

Constitutional law which far franscend the particular

facts. It is not our intention to become an advocate for

the Petitioner and we adopt his position only insofar as

the issues herein apply to all attorneys in that they

might suffer conviction under the same procedures used

against the Petitioner.

The Louisville Bar Association raises the question of

whether the judiciary shall continue to possess this

summary power which is exercisable in violation of the

Constitutional rights of all those who appear in the cour-

troom. This question is of a vital concern to all prac-

ticing attorneys, not only in Louisville, but in every

courtroom across the country. It should be pointed out

that this Appeal, even from the Petitioner’s standpoint,

3

does not reach the question of guilt or innocence. The

appeal challenges the procedures by which the convic-

flon was obtained. /

Thus, the membership of the Louisville Bar Associa-

tion has a vested interest in the outcome of this case as it

relates to the balance between the summary contempt

power of a judge and the Constitutional rights of an at-

torney zealously representing his client.

SUMMARY OF ARGUMENT

I. At the conclusion of the summary contempt

proceeding conducted by the trial judge, the Petitioner

stood accused, convicted, and sentenced of a serious *

crime. His sentence \was far in excess of the penalty

which would entitle him to a jury trial on the charges.

He was denied a jury trial because the Trial Court and

the Court of Appeals of Kentucky reduced his sentence.

The Amicus maintains that the original sentence should

determine the right to a trial by jury. Later reductions in

the sentence do not affect the seriousness of the crime.

Therefore the Petitioner was unconstitutionally denied

his right to a jury trial.

Various loopholes now exist through which an

alleged contemnor can be denied a jury trial when

charged with a serious crime of contempt. The Amicus

respectfully urges the Court to tighten the

Constitutional standards that control contempt by

adopting the following rules: 1) The sentence original-

ly imposed by the trial judge determines the seriousness

of the crime. Later reductions of the sentence do not

affect that determination; and 2) In the case of multi-

4

ple petty contempts, the sentences must be aggregated

to determine the seriousness of the crime for jury trial

purposes.

Alternatively, the Amicus respectfully contends that

contempt should be treated like any other crime for jury

trial purposes. Since the possible penalty for contempt

is unlimited, an alleged contemnor should be given a

jury trial in all cases where imprisonment is con-

templated.

II. When the Petitioner was sentenced at the conclu-

sion of trial he attempted to speak in. his defense. The

trial judge responded by cutting off his attempt and

threatening to forcibly silence him. The trial judge

waited until the end of trial to pass sentence and the

Petitioner was denied his Constitutional right to Due

Process of Law, when he was prevented from speaking in

defense or mitigation of his crime. This right, the right

of allocution, is one of the oldest principles of Common

Law. All alleged contemnors should be given the right to

speak before imposition of sentence, even in the cases

where contempt occurs before the judge in open trial.

The Amicus respectfully urges the Court to

guarantee to all alleged contemnors a full Due Process

hearing before conviction and the imposition of

sentence. Justice and fairness would best be served if

‘> this were the case. The contempt power would be just as

effective. Since this Court has extended Due Process

guarantees even to the deprivation of private property in

a civil action, the time is long overdue that Procedural

Due Process be guaranteed to alleged contemnors before

conviction and before criminal penalties can be im-

posed.

\

5

III. The Petitioner was denied his Constitutional right

to a fair trial before an impartial magistrate because the

trial judge had adopted an adversary posture towards

him. This adversary posture was evidenced by certain

remarks made about the Petitioner by the trial judge,

and by the unusual manner in which he passed

sentence. The Court of Appeals of Kentucky held that

the judge was not disqualified from passing judgment

upon the Petitioner because of bias. However, the Court

of Appeals did not consider the adversary posture test.

In the contempt situation the judge is called upon to

play the roles of complainant, judge, jury and dis-

ciplinarian. Because of human frailty and the fact that

judges often view attacks upon the court as personal at-

tacks, the chances against a judge remaining fair and

_impartial are very great. It would be more realistic to

assume that no judge before whom allegedly contemp-

tuous acts are committed can properly and fairly con-

duct. a summary contempt proceeding in a manner that

would conform to the fair trial before an impartial

magistrate test of Due Process.

Therefore, the Amicus respectfully submits that if

the right to a fair trial before an impartial judge is to be

guaranteed, then a judge other than the one who

witnessed the alleged contempt should conduct a hear-

ing on the charges. The role of the trial judge should be

limited to a citation for contempt that would be

equivalent to an indictment. The contemnor would have

to answer the charges before another judge in a hearing

after the conclusion of trial. The Amicus is convinced

that the power to cite for contempt, combined with the

physical restraints that were approved in Illinois v.

6

Allen, 397 U.S. 337, 344 (1970), is adequate for the judge

to maintain control of the courtroom.

ARGUMENT

INTRODUCTION

THE SUMMARY NATURE OF THE CONTEMPT

POWER SHOULD BE FORECLOSED BECAUSE

IT IS FAR IN EXCESS OF THE POWER

NECESSARY TO SERVE THE ENDS FOR WHICH

IT EXISTS.

As previously stated, this case involves questions of

Constitutional law which far transcend the: particular

facts and the interest of the Petitioner. In keeping with

our role as spokesman for our membership and in the in-

terest of all practicing attorneys, the Amicus presents

this introductory discussion of the contempt power. The

recommendations of the Amicus which follow would vir-

tually foreclose the summary nature of the contempt

‘power if they are adopted by the Court. If the Court is to

act upon the general nature of contempt power, then a

discussion of the power as it has evolved and exists at

present is appropriate. Therefore, the Amicus presents

this introduction to give perspective and support to the

argument that follows.

The Summary Contempt Power stands as an anoma-

ly in the law, which is contrary to the spirit and purpose

of the Constitution and Bill of Rights. Since this power

is far in excess of the power needed by the judiciary to

adequately serve the ends for which it exists, it should

be severely restricted. This Court should no longer

countenance the summary disposition of contempt

charges without all the normal Due Process guarantees

*

7

enjoyed by virtually all other criminal defendants.

The arbitrary nature of the contempt power and the

dangers of its abuse have long been recognized. As

Edward Livingston said in 1873; 1 Edward Livingston

Works, 260 (1873): ’

‘“‘An offense so ill defined, so liable to be im-

puted, embracing such a variety of dissimilar acts,

would be dangerous and oppressive in the extreme,

were it to be prosecuted according to the ordinary

forms of law; but all these are disregarded.”

The Amicus believes that the abuse so long feared is

now upon us. At the time of the adoption of our

Constitution the penalties for contempt were trivial. In

United States v. Barnett, 376 U.S. 681, 748 (1964),

Justice Black in a study of the evolution of the contempt

power said:

“The available evidence of the practice in

criminal contempt cases also suggests that

punishments were trivial. This practice was

described by Chief Justice Kent in 1809 as follows:

‘There is no such thing as an abuse of this power in

modern times. The case probably is not to be found.

An alarm cannot be excited at its existence, in the

extent now laid down . . . . The tendency of the

times, is rather to induce the courts to relax, than

increase in the severity of their ancient discipline,

to exercise their power over contempts with extreme

moderation.’ ”

It has been noted that there seems to be no reported

case prior to 1914 which imposed a sentence of more

than one year for contempt. United States v. Green, 241

F.2d 631, 634 (CA 2 1957). Also in Barnett, supra, p. 753,

Justice Black found that severe penalties for contempt

were of recent origin:

8

“The imposition of serious penalties for criminal

contempts is a relatively recent phenomenon. From

the foundation of the Republic until 1957 I am

aware of only two isolated instances of imprison-

ment for longer than six months for criminal con- |

tempt brought to the attention of this Court. Jn re

Savin, 131 US 267, 33 L ed 150, 9 S Ct 699 (one

year); Hill v. United States ex rel. Weiner, 300 US

105, 81 L ed 537, 57 S Ct 347 (two years). Since

1957, however, our attention has been called to at

least six instances where imprisonment of a year or

more was imposed.”

The courts no longer exercise their power of con-

tempt with extreme moderation. Recent cases have im-

posed excessive sentences for contempt. Mayberry v.

Pennsylvania, 400 U.S. 455 (1971) 11-22 years; Taylor v.

Hayes, Ky., 494 S.W.2d 737 (1973) original sentence, 54

months; United States v. Seale, 461 F.2d 345 (CA 7

1972) 4 years. In 1962, the average sentence for con-

victed contemnors received in federal prisons was 6.4

months, thus making the average contempt a serious

crime. The Federal Prison System - 1964, hearing before

the Sub-Committee on National Penitentiaries of the

Senate Committee on the Judiciary, 88th Congress, 2d

Sess. (Jan. 22, 1964), p. 10. The crime of contempt has

changed in the years since the nation was founded, from

a petty or trivial offense to a most serious and infamous

crime.

The crime of contempt has met with increasingly

severe penalties for two reasons. First, because of its ar-

bitrary nature, this nearly despotic power has grown in

and of itself. Second, because the courts view

_ themselves as under seige in an *" of political unrest

9

that challenges our most sacred institutions.

A recent statement of the Court of Appeals of Ken-

tucky in the case of Arnett v. e, Ky., 462 S.W.2d

940, 948 (1971), evidences this attitude:

“But times have changed. Some elements of our

society are fomenting disrespect for the courts and

encouraging contemptuous conduct. The courts are

confronted with a serious threat to the structure of

our system of justice. Dollar and time limits

suitable for conditions of the previous century are

not adequate for the conditions of today.”

However, it appears that the courts of this country

are laboring under a misconception. Cases such as the

Chicago Seven Conspiracy Trial and the New York

Black Panther Trial have received an inordinate

amount of media coverage. The coverage of such trials

has fostered an opinion among the public and the bar,

that the courts are under a concentrated attack. The

judiciary, the organized bar, and state legislatures have

reacted very strongly to this supposed threat.

In order that a scientific study of this problem might

be undertaken, the Bar of New York City impaneled a

special committee. The committee surveyed one-third

of the federal trial judges on the problem of disorder in

the courts. Their findings were most revealing; Disorder

in the Court, Report of the Association of the Bar of the

City of New York, Special Committee on Courtroom

Conduct, p. 6 (1973):

“Based on these figures the total incidence of

courtroom disorder leading to a contempt convic-

tion in the federal system is less than one-fifth of 1

percent of the criminal trials, and an even lower

percentage of the total trials.”

10

It is evident from the study that the‘majority of con.

temnors are not radicals bent on tearing down the courts _

but rather ordinary felons, undoubtedly bewildered and

frustrated by the situation they find themselves in.

Contempt does not present a political problem nor

does it present a problem which could be considered

statistically important. The total incidence of cour-

troom disorder leading to contempt in the federal

system is less than one-fifth of one percent of the

criminal trials. Disorder in the Court, p. 8. ‘

The Amicus must conclude that the vast increase in

penalties for contempt cannot be justified. This increase

has arisen from the arbitrary nature of the power itself.

As Justice Black recognized in Green v. United States,

356 U.S. 165, 208-209 (1958), the Constitution and the

Bill of Rights were adopted as checks upon such ar-

bitrary powers in the hands of those in authority.

“I cannot help but believe that this arbitrary

power to punish by summary process as now used,

is utterly irreconcilable with first principles un-

derlying our Constitution and the system of govern-

ment it created—principles which were uppermost

in the minds of the generation that adopted the

Constitution. Above all that generation deeply

feared and bitterly abhorred the existence of ar-

bitrary, unchecked power in the hands of any

government official, particularly when it came to

punishing alleged offenses against the state.”

It is the absence of procedural limitations on the con-

tempt power which is most directly responsible for the

tremendous growth in penalties imposed over the years.

The summary contempt power has been perpetuated

because it has generally been viewed as indispensable.

11

In the words of Chief Justice Taft, “The power of con-

tempt which a judge must have and exercise in protec- .

ting the due and orderly administration of justice and in’

maintaining the authority and dignity of the Court is

most important and indispensable.” Cooke v. United

States, 267 U.S. 517, 539 (1925). The necessity for this

power is subject to question because the courts in Civil

Law countries do not have such a power and yet con-

tinue to operate with success. Moreover, Civil

Jurisprudence does not even recognize the Common

Law concept of contempt. Pekelis, Legal Techniques

and Political Ideologies, 41 Mich. L. Rev. 665 (1943).

Clearly a judicial system would not stop functioning if it

did not have a summary contempt power.

The Amicus does not contend that the contempt

power be abolished. However, its summary nature

should be foreclosed because other measures would be

just as effective in controlling the course of a trial. The

exercise of the contempt power must be “the least possi-

ble power adequate to the end proposed.” Shillitani v.

United States, 384 U.S. 364, 371 (1966); Anderson v.

Dunn, 6 Wheat 204, 231 (1821); In re Michael, 326 U.S.

224, 227 (1945).

The Amicus respectfully urges this Court to foreclose

the summary nature of the contempt power by; 1)

guaranteeing a jury trial to all alleged contemnors when

imprisonment is contemplated; 2) by guaranteeing a full

Due Process hearing at the conclusion of triafon the

charges; 3) by requiring that a judge, other than the one

before whom the allegedly contemptuous acts occurred,

conduct the hearing.

12

If impartiality and fairness are to be the virtues of

our courts then we must guarantee all criminal defen-

dants those procedural safeguards upon which our

system of laws is based. The demise of the summary

nature of the contempt power will, in the long run,

generate greater respect for our judiciary. We close this

introduction with a statement of Justice Black in Green

v. United States, 356 U.S. 165, 218 (1958):

“In the last analysis there is no justification in

history, in necessity, or most important in the

Constitution for trying those charged with violating

a court’s decree in a manner wholly different from

those accused of disobeying any other mandate of

the state.”

I

WHEN AN ALLEGED CONTEMNOR IS

SENTENCED TO PUNISHMENT IN EXCESS OF

THE REQUISITE AMOUNT TO ESTABLISH THE

CONTEMPT AS A SERIOUS CRIME, THEREBY

GUARANTEEING THE DEFENDANT THE RIGHT

TO A TRIAL BY JURY ON THE CHARGES, THE

TRIAL JUDGE AND THE APPELLATE COURT

SHOULD NOT BE PERMITTED TO ALTER THE

SENTENCE AT A LATER TIME TO FORECLOSE

THE DEFENDANT’S RIGHT TO A TRIAL BY

JURY.

At the end of trial, the judge sentenced the Petitioner

on nine counts of contempt. The sentences, which

ranged from thirty (30) days to one year, were ordered to

be served consecutively. Thus, the Petitioner faced a

total of fifty-four (54) months imprisonment. Apparent-

ly the trial judge realized that the one year sentences en-

titled Daniel Taylor to a jury trial on the charges.

13

Consequently the judge, although not until four months

after he had sentenced Mr. Taylor, reduced the sentence

for two specifications of contempt from one year each to

six months each. This reduced the total sentence to

forty-one (41) months and, as the judge erroneously

assumed, also foreclosed the Petitioner's right to a trial

by jury.

Unfortunately, the trial judge neglected to specify in

his corrected judgment whether the sentences were to be

served consecutively or concurrently. Applying the

judge’s intent at trial, where he ruled that the sentences

were to be served consecutively, it could be surmised

that this intent had not been changed. However, when

the case was appealed by the Petitioner, the Court of

Appeals of Kentucky held that because the sentences

were not specified as to concurrently or consecutively,

they were to be served concurrently. Thus, the sentence

would be six months and for this reason Taylor did not

have the right to a jury trial.

The Court of Appeals of Kentucky followed two re-

cent decisions of substantial import which indicated

that the reduced total sentence would still give Mr.

Taylor the right to a jury trial. The Supreme Court in

the case of Bloom v. Illinois, 391 U.S. 194 (1968), found

contempt to be an ordinary crime and ruled that in

determining the seriousness of the crime, for the purpose

of the right to a jury trial, one looks to the penalty ac-

tually imposed as the best evidence thereof. In accor-

dance with an earlier decision in Duncan v. Louisiana,

391 U.S. 145 (1968), applying the right to a jury trial to

the states, the Court found that since the penalty ac-

tually imposed exceeded six months, the contempt was

14

a.serious crime entitling the Petitioner therein to a trial

by jury.

The Court of Appeals for the Seventh Circuit in the

cases of United States v. Seale, 461 F.2d 345 (CA 7,

1972) and In re Dellinger, 461 F.2d 389 (CA 7, 1972),

applied the decision in Bloom to the area of multiple

petty contempts which had arisen out of the Chicago

Seven conspiracy trial. They ruled that where a contem-

nor has been found guilty and sentenced to imprison-

ment for multiple petty contempts, the Court will

aggregate the sentences, and the total sentence will be

the penalty actually imposed for the purpose of deter-

‘mining the right to a jury trial.

However, in holding that under Bloom, Seale and

Dellinger, the Petitioner did not have a right to a jury

trial, the Court of Appeals completely overlooked the

rules laid down in two of their recent decisions. In

Beasley v. Wingo, Ky., 432 S.W.2d (1968) the Court

held that sentencing was in the discretion of the trial

judge, not the Appellate Court. In McBride v. Com-

monwealth, Ky., 432 S.W.2d 410 (1968) the same Court

held that sentences which do not specify between con-

currently or consecutively are to be served consecutive-

ly. The Court of Appeals of Kentucky neglected to either

cite, overrule, or even comment on these two recent

decisions precisely on point. One can only conclude that

the Court of Appeals of Kentucky mistakenly

overlooked these decisions and were in error in the

Taylor decision. The Constitutional guarantee to a trial

by jury is one of the most cherished rights a person has.

Throughout our history this right has been jealously

guarded by our Courts. We respectfully contend that the

15

Supreme Court of the United States should not

countenance an after the fact alteration of a jail

sentence by the trial judge, or an oversight, mistake, or

error by the Court of Appeals of Kentucky to deny an at-

torney his Constitutional right to a trial by jury.

The Amicus believes that the original sentence

should determine the seriousness of the crime and that

later reductions in the sentence made in a spirit of mer-

ciful justice, do not alter that determination. Therefore,

post-trial reductions in the sentence should not be

allowed to infringe upon the accused’s Constitutional

right to a jury trial.

The decisions of this Court in Cheff v.

Schnackenberg, 384 U.S. 373 (1966), Bloom v. Illinois,

391 U.S. 194 (1968), and Baldwin v. New York, 399 U.S.

66 (1970), leave three loopholes through which an

alleged contemnor may be denied his Constitutional

right to a jury trial without violation of the letter of the

above decisions. First, the Appellate Court can merely

reduce the sentence imposed, as they did in this case, no

matter how serious the trial judge viewed the crime. Se-

cond, the trial judge can rule that each citation for con-

tempt was for a separate offense, whereupon the judge

may impose multiple sentences of six months and

thereby sentence the accused to a term far in excess of

the penalty necessary to attach the jury trial require-

ment. The accused is denied the right to a jury trial

because no one sentence on the separate crimes exceeds

six months. Although the Seventh Circuit has ruled that

the sentences on multiple petty contempts must be

aggregated to determine whether the jury trial right at-

taches, United States v. Seale, 461 F.2d 345 (CA 7,

16

1972); In re Dellinger, 461 F.2d 389 (CA 7, 1972), the

Supreme Court has yet to adopt the rule therein as a

Constitutional standard. Third, since the appellate

court can later reduce the sentence, thereby denying

the contemnor the right to a jury trial, the accused can

be severely chastized before the court, sentenced to a

very long term of imprisonment, made to run a

professional guantlet, and still be denied this basic

Constitutional right.

In the case of Daniel Taylor, the trial judge did

everything he could to impress upon the accused, the

Bar and the community, the severity of Taylor’s crime.

The sentence that the judge imposed left no doubt about

the seriousness of the offense. Taylor faced possible

professional discipline or disbarment, loss of his

clientele, and 54 months in prison. The judge in com-

menting upon Taylor’s conduct said:

“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 . . .

It’s ashame that this court has to do something

that the Bar Association of this State should have

done a long time ago.” (T.R. 2288)

When the Court of Appeals of Kentucky handed down

their opinion on appeal of the conviction, they

characterized Taylor’s actions thus; Taylor v. Hayes,

Ky., 494 S.W.2d 737, 741 (1973):

“There is no necessity of detailing the innumerable

acts of Taylor which clearly reflected his contempt

for the court as well as the judicial system of this

Commonwealth. His actions were such as to place

on trial the entire judicial system of the Com-

17

monwealth and those judges sworn to uphold its

Constitution and laws and thereby assure defen-

dants a fair, orderly, and speedy trial.”

Yet, in spite of this, the Court of Appeals reduced the

sentence to six months and ruled that Dan Taylor had

not committed a serious crime which would entitle him

to a jury trial. Apparently, the only fact that the Court

of Appeals considered in ruling on the jury trial question

was the reduced sentence. It is abundantly clear in this

case that other extrinsic evidence firmly establishes the

seriousness of the alleged offense.

The circumstan@es and actions which preceded the

denial of a jury trial to the Petitioner in this case

demonstrate the need for further changes in the

Constitutional standards that govern this Sixth Amend-

ment guarantee. Therefore the Amicus respectfully

urges this Court to hold the following: 1.) The sentence

originally imposed by the trial judge determines the

seriousness of the crime and later reductions of the

sentence do not affect that determination; and 2.) In the

case of multiple petty contempts, the sentences must be

aggregated to determine the seriousness of the crime for

jury trial purposes.

Alternatively, the Amicus respectfully submits to

this Court that there is no justification for denial of the

right to a jury trial in any case where the accused faces

imprisonment possibly in excess of 6 months.

This Court in Bloom v. Illinois, 391 U.S. 194 (1968)

rejected the sui generis approach to the contempt power

and held that contempt is a crime in the ordinary sense.

Moreover, Justice White in the majority opinion felt

that there were even more compelling reasons to

18

guarantee the right to a jury trial for contempt than for

other crimes; Bloom, supra p. 201:

“Indeed, in contempt cases an even more com-

pelling argument can be made for providing a right

to jury trial as a protection against the arbitrary ex-

ercise of official power. Contemptuous conduct,

though a public wrong, often strikes at the-most

vulnerable and human qualities of a judge’s

temperment. Even when the contempt is not a

direct insult to the court or the judge, it frequently

represents a rejection of judicial authority, or an in-

terference with the judicial process or with the

duties of officers of the court.”

In Frank v. United States, 395 U.S. 147 (1969), Mr.

Justice Marshall, speaking for the Court in a decision

which held that it was not the authorized punishment

but rather the actual punishment which was deter-

minative of the right to a jury trial in the contempt con-

text said:

“|. . for purposes of the right to trial by jury,

criminal contempt is treated just like all other

criminal offenses. The defendant is entitled to a

jury trial unless the particular offense can be

» 99

classified as ‘petty’ ”’.

Frank presents a contradiction. While the Supreme

Court ruled that contempt was to be treated the same as

other crimes for the purpose of jury trial, in actuality, for

all other crimes invocation of the right to a jury trial is

predicated on the possible punishment not the actual

punishment. Every accused contemnor, where the judge

contemplates imprisonment, should be guaranteed the

right to a jury trial on the theory that his maximum

punishment is unlimited. Since this approach is Con-

19

stitutionally mandated for all other crimes, there seems

to be no reason to treat the crime of contempt different-

ly.

Wherefore, the Amicus respectfully urges the Court

to reverse the conviction below and rule that an alleged

contemnor must be guaranteed the right to a jury trial in

all cases where imprisonment is contemplated.

Il

THE CONSTITUTIONAL GUARANTEE OF DUE

PROCESS OF LAW REQUIRES THAT IN ALL

CONTEMPT SITUATIONS AN ALLEGED

CONTEMNOR MUST BE PERMITTED TO SPEAK

IN DEFENSE OR MITIGATION OF THE

CHARGES AGAINST HIM, INCLUDING THOSE

CONTEMPTS COMMITTED BY AN ATTORNEY

IN THE PRESENCE OF THE TRIAL JUDGE,

BEFORE HE IS ADJUDGED GUILTY AND

SENTENCE IS IMPOSED.

At the conclusion of trial, the judge called the

Petitioner before him and proceeded to sentence him on

the contempt citations brought during the trial. The

Judge openly attacked the Petitioner’s character, his

motives, and his professional qualifications and an-

nounced his intention to make an example of the

Petitioner before the Bar and the local community.

Before sentence was imposed upon the contempt

citations, the Petitioner attempted to respond to the

charges against him but was prevented from doing so to

the extent that the Judge threatened to forcibly silence

him (T.R. 2288-2290). At no time was the Petitioner

allowed to say anything which might have affected the

Judge’s determination that criminal conduct had oc-

curred for which the Petitioner was guilty, or that might

20

have mitigated the seriousness of his actions or the

severity of the impending sentences.

This Court has recently held that one of the most

fundamental principles of Anglo-American law is that

“no one shall be punished without having had an oppor-

tunity to be heard in his defense.” Groppi v. Leslie, 404

U.S. 496 (1972); following: In re Oliver, 333 U.S. 257

(1948); In re Hammersmith, 4 EX. 87, 96, 154 Eng. Rep.

1136, 1140 (1849). That the opportunity to be heard in

defense or mitigation of a crime is a pre-requisite of Due

Process cannot be doubted. “The fundamental requisite

of Due Process is the opportunity to be heard”’. Grannis

v. Ordean, 324 U.S. 385 (1914).

This principle is known as audi alteram partem

(“hear the other side’, Black’s Law Dictionary, 4th Edi-

tion, p. 166). The principle is also basic to the Common

Law in England. Indeed there is some evidence that it

predates the Common Law and originated out of the

Judeo-Christian traditions of our Anglo-American socie-

ty. In the case of The King v. the Chancellor, Masters

and Scholars of the University of Cambridge, 1 STR.

557, 93 Eng. Rep. 698 (1723), Mr. Justice Fortescue

traced this principle back to the Garden of Eden saying:

“The laws of God and man both give the party an

opportunity to make his defence, if he has any. I

remember to have heard it observed by a very

learned man upon such an occasion, that even God

himself did not pass sentence upon Adam, before he

was called upon to make his defence.”

In the case of Jn re Pollard, 5 Moore P.C. (N.S.) 111,

16 Eng. Rep. 457 (1868) the English Courts extended the

principle to the direct contempt situation. There, the

21

Court held that the granting of an opportunity to make a

statement in defense of the charges was essential before

a sentence of contempt, even when the contempt arose

out of repeated actions in open court. The principle of

the Pollard case was affirmed as recently as 1958, in the

case of Samaratunga v. the Queen, (1958) A.C. 424, 432.

As Judge Friendly said im United States v. Galante, 298

F.2d 72, 77 (CA 2, 1972):

“Thus has Blackstone’s much quoted statement, ‘If

the contempt be committed in the face of the court,

the offender may be instantly apprehended and im-

prisoned, at the discretion of the judges, without

any further proof or examination,’ 4 Com. 286, been

qualified in the land that gave it birth.”

It appears that there have been only two cases

wherein the Supreme Court has addressed the question

of the contemnor’s right to allocution; Groppi v. Leslie,

404 U.S. 496 (1972) and Ex Parte Terry, 128 U.S. 289

(1888). The Terry case dealt with a direct contempt that

was sumimarily decided in open court. The accused was

not afforded the right to speak in his defense. There, the

Supreme Court said that the trial court was not bound

to hear any explanation of the contemnor’s actions

“ | if it was satisfied—and we must conclusive-

ly presume, from the record before us, that it was

satisfied, from what occurred under its own eye and

within its hearing—that the ends of justice

demanded immediate action, and that no explana-

tion could mitigate his offense, or disprove the fact

that he had committed such contempt of its

authority and dignity as deserved instant

punishment.” Terry, Supra p. 309-310.

_..

\

However, the Terry case was decided more than 80

years ago. Since that time there has been a vast expan-

sion of Due Process in areas less significant than the

potential imprisonment of the Petitioner herein.

The Court in Weiss v. Burr, 484 F.2d 973, 985 (CA 9

1973) characterized this change thus:

“

22

. in the decades since Terry was decided,

there has, without question, been a marked increase

in the Supreme Court’s sensitivity to procedural

due process. The mainstream of the decisions in-

volving that doctrine is now, and for some years has

been, represented by the cases which require that

notice and hearing be granted before deprivations of

liberty or property take effect. The importance of

notice and meaningful opportunities to be heard

has been recognized in criminal proceedings and in

numerous areas involving issues less significant

than the loss of liberty and the damage to Weiss’s

professional hopes which are threatened here.”

There are two generally recognized justifications for

the exercise of the summary contempt power. First, the

power may be used when it becomes necessary to

preserve order in the court and the integrity of the

judicial process. Second, the summary power may be

used by the trial judge to prevent the waste of judicial

resources when he has personally witnessed the conduct

in question, United States v. Meyer, 462 F.2d 827, 831

(CA DC 1972). We are concerned here with the first

justification of preserving order in the courtroom.

This Court held while reversing the conviction of the

petitioner in the case of Groppi v. Leslie, 404 U.S. 496

(1972) that where the defendant had committed an in-

direct contempt, a legislature could not summarily con-

23

vict the petitioner because there was no justification for

the summary procedure employed.

“| Indeed, we have stated time and again that

reasonable notice of a charge and an opportunity to

be heard in defense before punishment is imposed

are ‘basic in our system of jurisprudence.’ ”

The Groppi case is more applicable to the case of

Daniel Taylor than Terry, because the judge postponed

the sentencing of Mr. Taylor until the end of trial. Thus,

as in Groppi, supra, there was no justification for

proceeding summarily and denying the accused the

right to speak in defense or mitigation of his crime.

The Court of Appeals for the Ninth Circuit in the

case of Weiss v. Burr, 484 F.2d 973 (CA 9 1973), adopted

the above rationale and reversed the conviction of a

direct contemnor who had been convicted and sentenced

without an opportunity to speak in his defense. The

Court there ruled that the right of allocution was fun-

damental to Due Process and said:

“Since the distinctions between this case and Grop-

pi are essentially meaningless, that case is, as we

view it, controlling. It requires us to hold that

because. the trial judge delayed the disposition of

the citations, and at the time of sentencing was not

acting to quell a courtroom disruption to preserve

the dignity of the court, or to protect the safety of

court personnel, allouction was required and its

denial was violative of procedural due process.”

Since the trial judge delayed disposition of the con-

tempt charges against the Petitioner until the end of the

trial, the first justification for the summary power—that

of preserving order in the courtroom—did not exist.

24

Therefore, the Petitioner was denied his Constitutional

right to Due Process of Law when he was summarily

convicted and prevented from speaking in defense or

mitigation of the crime.

The Amicus respectfully urges the Court to rule that

for all contempt citations the accused has a

Constitutional Due Process right to speak in defense or

mitigation of the charges before the imposition of

sentence. Moreover, in keeping with our belief that the

summary nature of the contempt power should be

foreclosed, we respectfully submit that the Court should

rule that in all prosecutions for contempt, the accused

will be guaranteed the right to a full Due Process hear-

ing on the charges at the conclusion of trial. As we have

suggested elsewhere in this brief, the contempt power

would be just as effective if its exercise were limited to

the bringing of a citation for contempt by the trial judge

which must be adjudicated at the conclusion of trial in a

full Due Process hearing presided over by a judge other

than the trial judge.

On balance, the reasons for the continued existence

of the summary contempt power do not justify the

denial of a Due Process hearing on the charges because

lesser measures would suffice. The inequity of the situa-

tion is especially evident when we compare contempt to

other crimes. Only the offense of contempt may be

punished without a hearing. All other offenses require,

at minimum, a full Due Process hearing.

This Court has greatly expanded the range of Due

Process procedural rights over the years. Today, even in

many non-offense situations, this Court has ruled that

Due Process requires a hearing as a buffer between the

—_7"

25

indivudal citizen and the government. For example, the

Supreme Court has recently held in Goldberg v. Kelly,

397 U.S. 254 (1970) and Wheeler v. Montgomery, 397

U.S. 280 (1970) that the Due Process clause of the

Fourteenth Amendment requires that the states afford

an evidentiary hearing to welfare recipients before ter-

mination of their benefits; and in Fuentes v. Shevin, 407

U.S. 65 (1972), that Due Process requires a hearing

before state repossession of goods on default of a buyer

under a conditional sales contract. If the Due Process

Clause of the Fourteenth Amendment guarantees 4

hearing before the deprivation of a property right, even

in a civil action, then surely the time is long overdue

that Procedural Due Process be guaranteed to alleged

contemnors before criminal penalties can be imposed.

Wherefore, the Amicus respectfully urges the Court

to reverse the decision below and guarantee to all future

alleged contemnors the Constitutional right to a full

Due Process hearing before conviction and imposition of

sentence.

Ill

IN THE CIRCUMSTANCES OF THIS CASE THE

TRIAL JUDGE COULD NOT IMPARTIALLY SIT

IN JUDGMENT ON MULTIPLE CONTEMPT

CHARGES AGAINST THE PETITIONER.

Perhaps the most fundamental and essential Due

Process right guaranteed to a criminal defendant is the

right to a fair trial before an impartial magistrate. The

Petitioner was denied this Constitutional right when the

trial judge passed sentence upon him at the conclusion

of trial because the trial judge, justified or not, had

adopted an adversary posture towards the Petitioner.

26

This adversary posture was evidenced by certain dis.

paraging remarks made by the trial judge about Daniel

Taylor and the unusual manner in which sentence was

passed (T.R. 2288-2290).

When the trial judge sentenced the Petitioner at the

conclusion of the trial, he stated that it was a shame he

would have to do something that the Bar Association

should have done years ago. He further stated his inten-

tion to make Daniel Taylor an example to the Bar and

the local community:

“It’s a shame that this Court has to do

something that the Bar Association of this State

should have done a long time ago.

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

want the jury to hear this, that you’re not the rule,

you're the exception to the rule.” (T.R. 2289) |

The trial judge’s open and frank statement that he was

going to make the Petitioner an “example” would ob-

viate any conclusion that the judge had remained

detached and disinterested enough to give the Petitioner

a fair trial before an impartial magistrate.

It was the carefully considered opinion of the Court

of Appeals of Kentucky, in the decision below, that the

conduct of the trial judge did not prejudice the Due

Process rights of the contemnor and that there was no

evidence of bias which would disqualify him from exer-

cising his summary contempt power. The Court of

Appeals applied the relevant decisions of this court and

found that the trial court was not an activist seeking

combat with Taylor nor “‘did Daniel Taylor ever indulge

in any personal attacks of any kind upon the judge.”

Taylor v. Hayes, Ky., 494 S.W.2d 739, 744 (1973);

27

following: Offut v. United States, 348 U.S. 11 (1954);

Mayberry v. Pensylvania, 400 U.S. 455 (1971); and

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

that as long as the judge avoided becoming personally

embroiled in controversy with the contemnor and the

contemnor had not personally attacked the judge, they

were not constrained to find bias or prejudice in the trial

judge’s conduct. The standard that the Court of Appeals

of Kentucky applied to the conduct of the judge was not

Constitutionally stringent enough to determine whether

Due Process had been violated because they failed to

consider whether the judge had adopted an adversary

posture towards the contemnor. The case of United

States v. Meyers, 462 F.2d 827 (CA DC 1972), requires

disqualification of the judge where he has adopted an

adversary posture towards the contemnor. In Meyer the

Court of Appeals for the Seventh Circuit, in applying

the case of In re Murchison, 349 U.S. 133 (1955) said:

“The Due Process requirement of disposition by an

impartial judge is threatened, not only when the

contempt is of such a personal nature as to create

actual embroilment or the likelihood of personal

engagement of the feelings of the trial judge, but

also when the judge adopts an adversary posture

with respect to the alleged contemnor, even if he

has not been personally attacked. In re Murchison,

349 U.S. 133, (1955).”

The adversary posture of the trial judge as evidenced

by his actions and remarks creates a sufficient possibili-

ty of bias to make disqualification of the trial judge

necessary to preserve the integrity of the judiciary and

to protect the Due Process rights of the accused to a fair

28

trial before an impartial magistrate. United States y,

Meyer, supra, p. 841.

The Amicus respectfully submits to this Court that if

the right to a fair trial before an impartial judge is to be

guaranteed in the contempt situation, then the judge

before whom the alleged contempt took place should not

be allowed to conduct the post-trial hearing on the

charges or to pass sentence on the contemnor. When our

judicial system places the roles of complainant,

prosecutor, judge, jury and disciplinarian upon the

shoulders of the same judge who must bear the brunt of

the criminal conduct, and then demands that this same

judge remain fair and impartial, that judicial system

places too heavy a burden upon one man. No judge

should be required to bear this burden.

The psychology of our jurisprudence views the judge

and the court as one and the same. These words are used

interchangeably in our language to identify the institu-

tion of the court when in session. Not only do citizens

and attorneys who stand apart from the court view it in

this manner, but the judge views himself as the per-

sonification of the court and the protector of our most

sacred institution. Not only does the contemnor

characteristically view his conduct as against the judge,

the judge himself will frequently interpret any attack

upon the court as a personal attack. Justice Jackson in

his opinion in Sacher v. United States, 343 U.S. 1, 12

(1952) recognized the problem.

“It is almost inevitable that any contempt of a

court committed in the presence of the judge during

a trial will be an offense against his dignity and

authority. At a trial the court is so much the judge

29

and the judge so much the court that the two terms

are used interchangeably in countless opinions in

this Court and generally in the literature of the law,

and contempt of the one is contempt of the other.”

Any judge who presides at trial and is called upon to

punish contemptuous conduct would have difficulty

remaining fair and impartial were he the most virtuous

of men. All men suffer from human weaknesses and the

men upon whom we place the responsibility of protec-

ting our courts are no exception Justice Frankfurter out-

lined this human dimension in his opinion in Sacher v.

United States, 343 U.S. 1, 35 (1952):

“But precisely because a judge is human, and in

common frailty or manliness would interpret such

conduct of lawyers as an attack on himself personal-

ly, he should not subsequently sit in judgment on

his assailants, ... .”

This human dimension is not limited to the possibili-

ty that a judge may view contempt of the court as a per-

sonal attack. As Justice Black said in his dissent in

Green v. United States, 356 U.S. 165, 198 (1958):

“Like all the rest of mankind they (Judges) may be

affected from time to time by pride and passion, by

pettiness and bruised feelings, by improper un-

derstanding, or by excessive zeal.”

Under our present system we assume the objectivity

of the judge to such an extent that the alleged contem-

nor is put at a great disadvantage. The trial judge may

act on the contempt charges he prefers unless the con-

temnor can show that the judge adopted an adversary

posture towards him, became personally embroiled in

controversy with him, or was vehemently attacked by

mr

30

him. Mayberry v. United States, 400 U.S. 455 (1971); In

re Murchison, 349 U.S. 133 (1955); United States y.

Meyer, 462 F.2d 827 (CA DC 1972).

It would be more realistic to assume that no trial

judge before whom allegedly contemptuous acts are

committed can properly and fairly conduct a summary

contempt proceeding in a manner that would conform to

the fair trial before an impartial magistrate test of Due

Process. Moreover one theory may be asserted which

amounts to a logical truism: the judge in whose court the

alleged contempt occurs is the judge least uke to deal

fairly with the alleged contemnor.

Another characteristic of contempt makes it par-

ticularly difficult to deal with. Allegedly contemptuous

conduct most often arises out of passion and may thus

most readily arouse passionate responses in judges.

When the same judge who witnesses this conduct

decides upon its criminality, then the nature of the

crime of contempt is made to depend on the temperance

of the individual judge. Edward Livingston saw this

problem long ago in his treatise on the penal laws of this

country; 1 Edward Livingston Works 263 (1873):

“Judges (although by vesting them with this power

we treat them as angels) are men; their passions

will more readily be roused by real or fancied insults

than they would be by injuries, and nothing can be

more at war with justice than passion. Another

evil—there is no end to them—is, that from the

nature of the crime, its existence must depend on

the temper of the judge who happens to preside.

Words which a man of cool and considerate disposi-

tion would pass over without notice might trouble

the serenity of another more susceptible in his feel-

31

ing or irritable by his nature. There is no measure of

the offense but the ever-variable one of the human

mind. The judge carries the standard in his own

breast.”

Under the recent decisions of this Court relative to

the right to an impartial magistrate which were

previously cited, a paradox arises. If the alleged contem-

nor’s behavior is serious or offensive enough to raise the

presumption of judicial bias then another judge is

assigned to conduct the hearing. If the allegedly con-

temptuous behavior is not provocative enough to raise

this presumption then the contemnor must face the

same judge before whom the actions occurred and all the

dangers to the defendant’s Due Process rights that have

been cited above come into play. Where the alleged con-

temnor has enough restraint to prevent his acts from

becoming personal attacks, the situation remains poten-

tially appropriate for a denial of the contemnor’s

Constitutional right to a fair trial before an impartial

magistrate. In effect, the accused is penalized for his

restraint. This inequitable paradox and the dangers to

an alleged contemnor’s Due Process right could be cured

if this Court would adopt the recommendation of the

Amicus that the trial judge before whom the allegedly

contemptuous actions occurred, not be allowed to con-

duct a hearing on the charges or impose sentence upon

the contemnor.

As an alternative, the Amicus suggests a system un-

der which the trial judge would inform the tontemnor

that his actions were being cited for contempt. This cita-

tion would have the same effect as an indictment and

would be adjudicated at a post trial hearing conducted

32

by another judge. The Amicus believes that a citation

for contempt during trial would have an equally

deterrent effect upon the conduct of the contemnor as

the threat of an immediate judgment during trial.

The assertion that the threat of immediate punish-

ment is a more effective deterrent than the threat of

punishment inflicted somewhat later, is a_ highly

speculative one. Even shorter arguments in favor of ex-

peditious handling of accused persons have been re-

jected in favor of procedural fairness in matters of police

investigative techniques, Escobedo v. Illinois, 378 U.S.

478, 490 (1964) and the right to representation by

counsel, Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

The threat of subsequent criminal action, and in the

case of an attorney, the additional threat of professional

disciplinary hearings, should be sufficient to control

contumacious behavior in most cases. In the case of

litigants the recent decision in /llinois v. Allen, 397 U.S.

337, 344 (1970) allows the court wide latitude for dealing

physically with a disruptive defendant in a criminal

trial:

‘“‘We think there are at least three constitutionally

permissible ways for a trial judge to handle an

obstreperous defendant like Allen: (1) bind and gag

him, thereby keeping him present; (2) cite him for

contempt; (3) take him out of the courtroom until

he promises to conduct himself properly.”

In the case of an attorney, if the threat of subsequent

criminal action and _ professional discipline are not

enough to restrain him, in those instances where the dis-

ruption is so great that it threatens the validity of the

trial, it would be better to declare a mistrial and then

33

cite the attorney for contempt. This would protect the

defendant and prevent a complete retrial of a long case

after a reversal by an appellate court. Otherwise, the

court must bear the burden of a continuous contest

between the attorney and the authority of the court

resulting in a detriment to all parties involved and the

possibility of prejudicing the jury.

If the attorney should continue his contemptuous

behavior after the conclusion of the criminal hearings on

contempt and professional disciplinary hearings, the

judge should then appoint another attorney or allow the

defendants to obtain other counsel.

The standards of fairness that the Supreme Court

has applied to the contempt situation in In re

Murchison, 349 U.S. 133, 136 (1955), are rigorous.

“A fair trial in a fair tribunal is a basic requirement

of due process. Fairness of course requires an

absence of actual bias in the trial of cases. But our

system of law has always endeavored to prevent

even the probability of unfairness. To this end no

man can be a judge in his own case and no man is

permitted to try cases where he has an interest in §

the outcome . . . Every procedure which would &

offer a possible temptation to the average man as a

judge not to hold the balance nice, clear and true

between the State and the accused denies the latter &

due process of law . . . But to perform its high ;

function in the best way. ‘Justice must satisfy the &

: 99

appearance of Justice. .

This rigorous standard of fairness would best be &

served if the trial judge were not allowed to sit in judg-

ment of allegedly contemptuous acts committed before

him during trial.

~

34

Wherefore, the Amicus respectfully urges this Court

to reverse the Conviction below because the Petitioner

was denied his Constitutional right to a Fair Trial

before an Impartial Magistrate as guaranteed by the

Sixth and Fourteenth Amendments to the Constitution,

CONCLUSION

‘This case presents a valuable opportunity for the

Court to reconsider the balance between the summary

power of contempt and the Constitutional Due Process

rights of alleged contemnors. The Amicus believes that

the summary nature of the contempt power should be

foreclosed because it is in excess of the power actually

needed to fulfill the end proposed and is often abused.

Lesser measures, which do not contravene the accused’s

Constitutional rights, would provide equal deterrence to

contumacious conduct during trial.

Wherefore, the Amicus respectfully urges the Court

to reverse the decision below and therein further restrain

the summary power of contempt.

Respectfully submitted,

FRANK E. HADDAD, JR.

. JOE G. LEIBSON

Counsel for Amicus,

Louisville Bar Association

Of Counsel:

ED P. JACKSON