Amicus Curiae Brief — Taylor v. Hayes

In THE JAN 17 1974

Supreme Court of the Unitepabbatese, cur

Ocroser Term, 1973 ~

No. 73473

>

Dantet T. Tayxor, ITI,

Petitioner,

—_—VvV.—

Joun P, Hayes, Judge, Jefferson Circuit Court,

Criminal Branch, Second Division,

Respondent.

ON WRIT OF CERTIORARI TO THE, COURT OF APPEALS OF KENTUCKY

oo eee

BRIEF AMICUS CURIAE ON BEHALF OF THE

ASSOCIATION OF THE BAR OF THE

CITY OF NEW YORK

Burke MarsHALL

Yale University

Law School

New Haven, Connecticut

Leon FRmepMAN

Committee for Public Justice

22 East 40th Street

7 New York City, N. Y. 10016

Norman Dorsen

NYU Law School

40 Washington Square, South

New York City, N. Y. 10012

Attorneys for the Association of the

Bar of the City of New York

42 West 44th Street

New York, New York 10036

INDEX

PAGE

Interest of the Amicus Curiae 1

Statement of the Case 3

ee OE DTI ecccnnvcccinnnnnnnisiniasiniisieinisstuisinatintais 3

ARGUMENT:

Port I

The summary criminal contempt power violates

the due process clause of the Fourteenth Amend-

ment

A. The summary contempt power contains great

opportunities for abuse and has been severely

circumscribed in recent years

B. The potential for abuse in summary contempt

proceedings has in fact been realized ................

C. The summary contempt power is not neces-

sary to maintain order in the court ....................

Point IT

The trial judge below was required to refer the

contempt proceedings to another judge for a full

due process hearing

A. The trial judge could not impartially sit in

judgment of the contempt charges against peti-

tioner

13

16

22

—

ji

PAGE

B. Petitioner was entitled to a jury trial because

of the seriousness of the offense with which

he was charged .. 2%

C. A proper hearing was not afforded the peti-

thomer below one. coececeecoeencaeceeeceseseeeeeeeceoenn. 30

ConcLusion 35

TaBLE OF AUTHORITIES

Cases:

Anderson v. Dunn, 6 Wheat. 204 «

Bloom v, Illinois, 391 U.S. 194 (1968) 0... 7, 8, 13, 15,

20, 27

Brown v. United States, 356 U.S. 148 (1958) ............ 32

Cheff v. Schnackenberg, 384 U.S. 373 (1966) .................. 27

Commonwealth v. Patterson, —— Pa. ——, 308 A.2d

90 (1973) 21

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

Duncan v. Louisiana, 391 U.S. 145 (1968) 26

Frank v. United States, 395 U.S. 147 (1969) ............. .. 26

Green v. United States, 356 U.S. 165 (1958) 7, 8,15

Grizzell v. Wainwright, 481 F.2d 405 (5th Cir. 1973) _. 11

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

Harris v. United States, 382 U.S. 162 (1965)

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

iil

PAGE

Illinois v. Allen, 397 U.S. 337 (1970) 4, 6,17

Johnson V. Mississippi, 403 U.S. 212 (1971) oo. 10, 22

Laughlin v. Eicher, 145 F.2d 700 (D.C. Cir. 1944) ... 18

In re Little, 404 U.S. 553 (1972) 6, 10

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ....6, 10, 22

In re McConnell, 370 U.S. 230 (1962) ............-.-------- 6, 7, 9, 32

In re Michael, 326 U.S. 224 (1945) 6

Mullane v. Central Hanover Trust Co., 339 U.S. 306

(1950) \ 30

Offutt v. United States, 348 U.S. 11 (1954) -............- 9, 22, 25

Panico v. United States, 375 U.S. 29 (1963) ..............--.--- 9

People v. Tecza, 4 Ill. App. 2d 1058, 283 N.E. 2d 111

(1972) 14

People v. Tomashevsky—Appeal of Boudin, 48 Ill. 2d

559, 273 N.E. 2d 398 (1971) 14

Sacher v. United States, 343 U.S. 1 (1952) -.......- 14, 16, 17

State v. Browder, —— Alaska ——, 486 P.2d 925

(1971) 12

United States ex rel. Robson v. Oliver, 470 F.2d 10

(7th Cir. 1972) 11

United States v. Marra, 482 F.2d 1196 (2d Cir. 1973) . 11

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

1972) 11, 25

United States v. Meyer, 346 F. Supp. 973 (D.D.C. 1972) 15

United States v. Seale, 461 F.2d 345 (7th Cir. 1972) -.11, 29,

32

iv

PAGE

United States v. Wilson and Bryant, —— F.2d —~—

(2d Cir. Nov. 28, 1973) 11-12, 33

Ward v. Village of Monroeville, 409 U.S. 57 (1972) . 16

Weiss v. Burr, 484 F.2d 973 (9th Cir. 1973)

seestiesenes 11, 33

Statutory Provisions

Connecticut Public Act No. 770 (1971) 21

Kentucky Revised Statute 432.260 21

OrHEeR AUTHORITIES

Advisory Committee on the Judge’s Function of the

American Bar Association Project on Standards for

Criminal Justice, The Judge’s Role in Dealing with

Trial Disruptions (1971) 35

N. Dorsen and L. Friedman, Disorper in THE Court:

Report of the Association of the Bar of the City of

New York. (1973) 3, 14, 18, 20

Note, “Crirhinal Law—Contempt—Conduct of Attorney

During Course of Trial,” 1971 Wisconsin Law Re-

view 329

19

wa

In THE

Supreme Court of the United States

: Ocroser TERM, 1973

No. 73-473

_—~

Dantet T. Tayxor, III,

Petitioner,

—

Joun P. Hayes, Judge, Jefferson Cireuit Court,

Criminal Branch, Second Division,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY

—_<g>—

BRIEF AMICUS CURIAE ON BEHALF OF THE

ASSOCIATION OF THE BAR OF THE

CITY OF NEW YORK

The Association of the Bar of the City of New York

files this brief pursuant to Rule 42 of the United States

Supreme Court. Both Petitioner and Respondent have con-

sented to the filing of this brief and copies of the consents

of Petitioner and Respondent have been filed with the

Clerk of this Court.

Interest of the Amicus Curiae

The Association of the Bar of the City of New York

(“The Association”) has a membership of 10,200 attorneys

admitted to practice in New York and elsewhere. The As-

sociation was established by Act of the New York State

2

Legislature in 1871. Laws 1871, Chapter 819; Amended

Laws 1924, Chapter 134. Its stated statutory purposes are

“cultivating the science of jurisprudence, promoting re.

forms in the law, facilitating the administration of justice,

elevating the standard of integrity, honor and courtesy in

the legal profession and clicrishing the spirit of brother.

hood among the members thereof.”

In 1970, the Association appointed a Special Committee

on Courtroom Conduct to study and report on the extent

and causes of courtroom disorder which were of such wide

concern at the time and to suggest how the judicial system

and the legal profession might deal with these problems.

Ten members of the Association were appointed to the Com-

mittee (one later resigned because of the press of other

business). Burke Marshall, former Assistant Attorney

General and now Professor of Law at the Yale Law School,

acted as Chairman. Other members included a former New

York Court of Appeals judge, a former President of the

City Bar Association, a law school dean and a present

sitting federal judge.

The Committee and its staff worked for two and one-half

years on its study. Four consultants prepared special

papers, and many persons with expertise and first-hand

knowledge of the problem appeared before the Committee.

Other experts on different phases of the problem were inter-

viewed. A detailed questionnaire on courtroom disorder

was sent to every trial judge of general jurisdiction in the

nation (over 4,600) and 1,602 responded. Questionnaires

were also sent to every United States Attorney, the district

attorneys of the seventy largest jurisdictions, the Attor-

neys General of every state, and the presidents of the

3

eighty-nine largest bar associations in the nation.* Every

published case of courtroom disorder was analyzed.

The Committee has recently published its final report

under the title Disorper IN THE Court which contains its

analysis of the problems and its suggestions for remedial

action to preserve orderly judicial procedures and the in-

tegrity of the courtroom. The Association believes that

the Committee’s findings and conclusions may be helpful

to the Court in determining the legal issues presented on

this appeal.

Statement of the Case

Amicus incorporates the statement of the case as out-

lined by the Petitioner.

Summary of Argument

I.

The courts must have effective sanctions for protecting

themselves against disruption of their proceedings. How-

ever, the summary contempt power is so inconsistent with

the requirements of due process that it should no longer

be used to maintain order in the court. In recognition of

*The questionnaire returns indicated that courtroom disorder

was not a serious quantitative problem in American courts. Of

the 1,602 judges who responded only 107 reported that they had

experienced a total of 112 cases of trial disruption in their entire

lives on the bench. Similar conclusions were drawn by the United

States Attorneys, district attorneys, Attorney Generals and bar

association presidents. Where disorder did occur, defendants were

primarily responsible. Lawyers accounted for a very small propor-

tion of courtroom disruption. See N. Dorsen and L. Friedman,

DISORDER IN THE Court, Report of the Association of the Bar of

the City of New York, Special Committee on Courtroom Conduct

(hereinafter “DISORDER IN THE Cour”) 5-7, 268-332 (1973).

4

the abuses of the summary contempt power, this Court has

greatly circumscribed its use in recent years. A sentence

greater than six months can no longer be imposed, judges

who are personally embroiled with an alleged contemnor

cannot impose punishment upon him, and judges who have

been insulted by a defendant cannot wait until the end of

trial to hold him in contempt.

However, these restrictions are not enough. Time and

time again judges have imposed severe and arbitrary pun-

ishment on defendants and lawyers in summary contempt

proceedings. This has been done not only when an al-

leged contempt was considered a direct insult to the court

or the judge, but also when a lawyer merely engages in

vigorous advocacy. Too often a judge merely seeks retribu-

tion after a dispute with a party. The need for an impartial

tribunal to hear a contempt requires that all contempts be

heard by someone who is not acting as prosecutor of the

charges.

.The summary contempt power is not necessary to main-

tain order in the court. Under Illinois v. Allen, 397 US.

337 (1970) a trial judge may cite a defendant for contempt

(to be heard later by another judge), remove him from the

courtroom, or bind or gag him. These are effective, im-

mediate sanctions to protect the ongoing proceedings of

the court. A lawyer may also be cited for contempt (to be

heard after the trial by another judge) and he faces the

possibility of suspension and disbarment. Thus, summary

contempt is not necessary to deter lawyers from ‘misbe-

having in court. Respect for the courts is engendered not

by the fear of unlimited authority but by fair, due process

procedures.

we

5)

at,

Even if this Court does not find that summary contempt

per se violates the due process clause, it must still reverse

the judgment below since (1) the judge was personally em-

proiled with the petitioner; (2) the 54 month sentence orig-

inally imposed was a recognition of the seriousness of the

offense which, therefore, required a jury trial; and (3) a

proper hearing was not afforded the petitioner.

ARGUMENT

POINT I

The summary criminal contempt power violates the

due process clause of the Fourteenth Amendment.

We start with the proposition that orderly justice is an

absolute prerequisite for a functioning democracy. The

courts are perhaps the most important protection of the

rights of the citizens, but they cannot perform that func-

tion in an atmosphere of disorder, uproar or turmoil. The

courts simply must have efficient sanctions for protecting

themselves against disruption of their procedures. Justice

Brennan has written:

Constitutional power to bring an accused to trial is

fundamental to a scheme of “ordered liberty” and pre-

requisite to social justice and peace .. . [the nation ]

cannot endure if in individual cases the claims of social

peace and order on the one side and of personal liberty

on the other cannot be mutually resolved in the forum

designated by the Constitution. If that resolution can-

not be reached by judicial trial in a court of law, it

6

will be reached elsewhere and by other means, and

there will be grave danger that liberty, equality and

the order essential to both will be lost. Illinois y,

Allen, 397 U.S. 337, 347, 348 (1970) (Brennan, J. con.

curring). —

However, this does not mean that courts may impose

sanctions for courtroom misconduct in a manner contrary

to the basic principles which the courts are designed to

protect. It would be anomalous to say that while the courts

must afford due process of law to all those who come he.

fore them, they can deny that same due process to those who

in any way threaten the order of the courtroom. The basic

due process requirements of notice, hearing, an unbiased

judge and a jury trial where appropriate cannot be dis-

pensed with because the offense involved is labeled. con-

tempt of court.

A. The Summary Contempt Power Contains Great Opportuni-

ties for Abuse and Has Been Severely Circumscribed in

Recent Years.

This Court has often spoken about the dangers of the

summary contempt power. The Court wrote in Jn re

Michael, 326 U.S. 224, 227 (1945) that federal courts, in

contempt cases, must be limited “to ‘the least possible power

adequate to the end proposed.’ Anderson v. Dunn, 6 Wheat.

204, 231. The exercise by federal courts of any broader

contempt power than this would permit too great inroads

on the procedural safeguards of the Bill of Rights.”* In

* This Court has not made any distinction in reviewing summary

contempt procedures of state and federal courts and has imposed

the same due process requirements on both. Compare Jn re Me-

Connell, 370 U.S. 230 (1962) and In re Little, 404 U.S. 553 (1972).

This Court said in Mayberry v. Pennsylvania, 400 U.S. 455, 465

(1971) : “Whether the trial be federal or state, the concern of due

process is with the fair administration of justice.”

7

the case of In re McConnell, 370 U.S. 230, 236 (1962) this

Court said: “To preserve the kind of trials that our sys-

tem envisages, Congress has limited the summary contempt

power vested in courts to the least possible power adequate

to prevent actual obstruction of justice.”

Anticipating this Court’s decision in Bloom v. Illinois,

391 U.S. 194 (1968), Justice Black wrote in dissent in

Green v. United States, 356 U.S. 165, 193-94 (1958) :

The power of a judge to inflict punishment for criminal

contempt by means of a summary proceeding stands as

an anomaly in the law... [This] power .. . has

aptly been characterized by a State Supreme Court as

“perhaps, nearest akin to despotic power of any power

existing under our form of government.” [citing State

ex rel. Ashbaugh v. Circuit Court, 97 Wis. 1, 8, 72 N.W.

193, 194-95.] Even though this extraordinary author-

ity first slipped into the law as a very limited and

insignificant thing, it has relentlessly swollen, at the

hands of not unwilling judges, until it has become a=

drastic and pervasive mode of administering criminal

justice usurping our regular constitutional methods of

trying those charged with offenses against society.

Justice Black pointed out that the essential vice of the

summary contempt power is that it enables a judge to com-

bine in one person a variety of functions in a criminal

ease.

When the responsibilities of lawmaker, prosecutor,

judge, jury and disciplinarian are thrust upon a judge,

he is. obviously incapable of holding the scales of jus-

tice perfectly fair and true and reflecting impartially

3'

on the guilt or innocence of the accused. He truly be.

comes the judge of his own cause. The defendant

charged with criminal contempt is thus denied what |

had always thought to be an indispensable element of

due process of law—an objective, scrupulously impar.

tial tribunal to determine whether he is guilty or inno.

cent of the charges filed against him. ... “To this end

no man can be a judge in his case and no man is per.

mitted to try cases where he has an interest in the out-

come ... Fair trials are too important a part of our

free society to let prosecuting judges be trial judges

of the charges they prefer.” 356 U.S. at 199.

This position was followed by this Court in Bloom vy. Illi

nois, 391 U.S. 194 (1968). The Court held that serious

criminal contempt cases were subject to the jury trial pro-

visions of the Sixth Amendment as applied to the states

through the Fourteenth Amendment. The Court noted “the

potential for abuse which resides in the summary power to

punish for contempt.” 391 U.S. at 204. It pointed out the

many ways in which courts and legislatures had “eroded

the power of judges to try contempts of their own author.

ity.”. 391 U.S. at 207. The Court held:

Criminal contempt is a crime in the ordinary sense;

it is a violation of the law, a public wrong which is pun-

ishable by fine or imprisonment or both. . . . Given

that criminal contempt is a crime in every fundamental

respect, the question is whether it is a crime to which

the jury trial provisions of the Constitution apply. ...

We hold that it is, primarily because in terms of those

considerations which make the right to jury trial funda-

mental in crjminal cases, there is no substantial dif-

9

ference between serious contempts and other serious

crimes. 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 exer-

cise of official power. Contemptuous conduct, though

a public wrong, often strikes at the most vulnerable

and human qualities of a judge’s temperament, 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 interference with the judicial

process or with the duties of officers of the court.

391 U.S. at 201-202,

Bloom established that any sentence in excess of six

months cannot be imposed for any contempt by a state or

federal court without the intervention of a jury. Ina

series of other cases, however, the Court also imposed addi-

tional restrictions on the power of a trial judge to sentence

through summary contempt procedures. In Offutt v. United

States, 348 U.S. 11, 17 (1954) the Court held that a trial

judge who becomes “personally embroiled” with an alleged

eontemnor cannot hold him in contempt even though the

sentence was only ten days. In Jn re McConnell, 370 U.S.

930 (1962) the Court held that no contempt may be pun-

ished unless there is an actual obstruction of justice. In

Panico v. United States, 375 U.S. 29 (1963) the Court held

that a summary contempt proceeding was inappropriate

for an alleged contemnor who showed indications of mental

illness. In Holt v. Virginia, 381 U.S. 131 (1965) the Court

reversed a summary contempt fine of only $50 imposed

upon a lawyer for filing a vigorously-worded motion for

change of venue which charged the trial judge with bias.

In Harris v. United States, 382 U.S. 162 (1965) the Court

EE a a reer

10

established that summary contempt was not available as

sanction against a grand jury witness who refused to an.

swer questions put to him by the grand jury and who re.

peated his refusal after being brought before a federa]

judge. A district court could impose punishment only

through a full due process hearing under rule 42(b) of the

Federal Rules of Criminal Proceduce.

This Court imposed a new rule for summary contempts

in Mayberry v. Pennsylvania, 400 U.S. 455 (1971). In that

case a pro se defendant had cruelly and continuously in-

sulted the trial judge throughout the proceedings. After

the verdict, the judge held the defendant in contempt and

sentenced him to a term of 11 to 22 years for these con.

tempts. This Court reversed. It held that where a judge

“does not act the instant the contempt is committed, but

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

wise where the marks of the unseemly conduct have left

personal stings to ask a fellow judge to take his place. ...

[A] judge, vilified as this Pennsylvania judge, necessarily

becomes embroiled in a running, bitter controversy. No

one so cruelly slandered is likely to maintain that calm de-

tachment necessary for fair adjudication.” 400 U.S. at 463,

464, 465.

In its most recent cases on the subject, the Court re-

versed a summary contempt sentence in Johnson v. Missis-

sippi, 403 U.S, 212 (1971) since it was not clear that the

trial judge had personally observed the action which served

as the basis for the contempt citation. There was also evi-

dence of bias by the judge. “Trial before ‘an unbiased judge’

is essential to due process.” 403 U.S. at 216. In In re Little, .

404 U.S. 553 (1972) this Court unanimously reversed a

summary contempt conviction imposed by a state court

we

11

after a pro sé defendant had accused the judge of preju-

dice against him.

Many lower federal courts have followed this Court’s

lead and have imposed greater restrictions on the summary

contempt power. In United States v. Marra, 482 F.2d 1196

(2d Cir. 1973) the Second Circuit-held that a witness could

not be punished summarily by contempt for refusing to:

answer a question put to him during a criminal trial in the

presence of a jury. In United States v. Meyer, 462 F.2d

27, 845 (D.C. Cir. 1972), the District of Columbia Circuit

held an alleged contempt “which consists of an impugnation

of the integrity and impartiality of the trial judge is suffi-

ciently personal to invoke the Mayberry doctrine.” In such

a case a defendant “is entitled to have the contempts

charged against him adjudicated in a full hearing before

a different judge.” In United States v. Seale, 461 F.2d 345

(7th Cir. 1972) the Seventh Circuit held that a trial judge

eannot hold a person in summary contempt after the decla-

ration of a mistrial. The Court also held that “where the

judge waits to act until a mistrial or the end of a trial,

consecutively imposed sentences for contemptuous conduct

occurring during the course of the preceding trial must be

cumulated to determine the defendant-contemnor’s right to

a jury trial.” 461 F.2d at 356. If the total is more than six

months, a jury trial is necessary. In In re Dellinger, 461

F.2d 389 (7th Cir. 1972) the Seventh Circuit held that the

Mayberry rule applies as well to lawyers as to defendants

who commit a contempt. And in Grizzell v. Wainwright,

481 F.2d 405 (5th Cir. 1973) the Fifth Circuit held that

Mayberry should be given retroactive application. See also

Weiss v. Burr, 484 F.2d 973 (9th Cir. 1973) ; United States

ex rel. Robson v. Oliver, 470 F.2d 10 (7th Cir. 1972) ; United

12

States v. Wilson and Bryant, —— F.2d —— (2d Cir. No.

vember 28, 1973).

State courts have also re-examined the summary con.

tempt power and imposed restrictions on its use. The Su.

preme Court of Alaska held in State v. Browder, ——

Alaska ——, 486 P.2d 925 (1971) that in any criminal pro.

ceeding (including contempt) which may lead to incarcera-

tion, a defendant is entitled to a jury trial.

We hold that direct criminal contempts must be treated

like any other criminal prosecution for purposes of

the right to jury trial under article I, section 11 of the

Alaska Constitution. . . . it is clear that a criminal

contempt proceeding is criminal prosecution within

article I, section 11 of the Alaska Constitution. In

the instant case, we believe that considerations of con-

venience and expediency to the state are convincingly

outweighed by the right of an individual to be con-

victed only by means which are fundamentally fair.

We therefore hold . . . that article I, section 11 of the

Alaska Constitution guarantees the accused the right

to jury trial for a direct criminal contempt. 486 P.2d

at 973.

In summary, as a matter of federal constitutional law,

the power of summary contempt has been restricted as

follows:

1. Under Bloom, no sentence of greater than six months

can be imposed for contempt without a jury.

2. Under Offutt, no judge who is personally embroiled

with the alleged contemnor can sentence him for contempt.

—

13

3. Under Mayberry, a judge who is insulted or abused

by a defendant cannot wait until the end of the trial to

sentence for contempt.

4. Under Meyer and Dellinger, the Mayberry rule ap-

plies to lawyers as well as defendants.

5. Under Seale, consecutively imposed sentences for con-

tempt handed down at the ond of a trial must be cumulated

to determine the right to a jury trial.

B. The Potential for Abuse in Summary Contempt Proceedings

Has in Fact Been Realized.

This Court emphasized in Bloom the potential for abuse

that is present in summary contempt proceedings. In fact

these abuses have often occurred. Time and time again

judges have imposed severe and arbitrary punishment on

defendants and lawyers. As noted earlier, the defendant in

‘the Mayberry case received a sentence of eleven to twenty-

two years. No matter how outrageous the defendant’s

words were in court, that sentence imposed by the judge

who was their target is excessive. In the present case peti-

tioner Taylor was originally sentenced by the trial judge

to four-and-a-half years for contempt (later reduced to

three-and-a-half years) for his actions in defending the

murder case of two black youths. The judge’s comments

show quite clearly that he felt personally affronted by what

occurred in his courtroom.

Even when an alleged contempt was not “a direct insult

to the court or the judge,” but consisted of vigorous ad-

vocacy or dispute of the court’s rulings, a judge may view

the action as a “rejection of judicial authority or an inter-

ference with the judicial process.” Bloom v. Illinois, 391

14

U.S. at 202. After a dispute with a lawyer, judges wil]

often be “seeking retribution” rather than impartially ap.

plying the law. Sacher v. United States, 343 U.S. 1, 37

(1952) (Frankfurter, J. dissenting).

In its final report, the Special Committee on Courtroom

Conduct analyzed the published cases of summary contempt

from 1960 to 1972. It found that of a total of seventy-two

cases where the trial judge imposed summary punishment,

forty (more than sixty percent), were later reversed by

an appeals court. See DisorDER in THE CouRT, pp. 233-234.

In many of these cases, the arbitrariness of the judge's

action is obvious. In a case involving members of the S.DS.

in Chicago, the judge held all sixteen defendants in con-

tempt for laughing at one of his questions (“Who is in

charge of the 8.D.S.?”) and sentenced them to ten days in

jail. The sentences were reversed on appeal. People v.

Tomashevsky—Appeal of Boudin, 48 Ill. 2d 559, 273 N.E.

2d 398 (1971). Im another Illinois case, the following

colloquy took place:

The Court: There will be a fine of $50 and $5

court costs.

Mr. Tecza: Is there any way I can appeal this de-

cision. It is horribly unjust.

The Court: Maybe I should raise the fine. We will

make the fine $85 and $5.

Mr. Tecza: Fine. On what basis are you raising

it?

The Court: Contempt. People v. Tecza, 4 Til. App.

2d 1058, 283 N.E. 2d 111, 113 (1972).

The need for an impartial judge to pass upon alleged

contempts is also shown by the cases in which contempt

15

sentences are reversed or greatly reduced by a second judge

reviewing the same record. In United States v. Meyer, 462

F. 2d 877 (D.C, Cir. 1972) a lawyer was held in contempt

and sentenced to 30 days in jail for making disrespectful

remarks to the judge. On remand before another judge,

the case was dismissed since there was no obstruction of

the administration of justice. 346 F. Supp. 973 (D.D.C.

1972). In the Dellinger case discussed above, the original

trial judge had found 10 separate defendants guilty of 173

contempt specifications and sentenced them to a total of 16

years 30 months and 106 days in jail. After appeal and re-

mand, only 4 defendants were found guilty of a total of 13

specifications and no sentence of imprisonment was im-

posed. In re Dellinger, 72 Cr. 925 (N.D. Ill. December 6,

1973) (Gignoux, J.).

An examination of the cases showing use of the summary

contempt power indicates that, as Justice Black said in

Green, “ ‘prosecuting judges [should never] be trial judges

of the charges they prefer.’” 356 U.S. at 199. This is just as

true in cases where a sentence of less than six months is

imposed. In all contempt cases the need for an impartial

judge is clear. As this Court said in Bloom: “Indeed, in

contempt cases an even more compelling argument can be

made for providing a right to jury trial as a protection

against the arbitrary exercise of official power.” 391 U.S.

at 202. ot

Even if a trial judge acts instantly during the trial to

hold a person in contempt (with sentence to be pronounced

on the spot or at the end of the trial), this does not meet

the due process problem mentioned above. The judge is just

as likely (if not more so) to act arbitrarily, if he must do

so on the spot. As this Court said in Sacher v. United

16

States, 343 U.S. 1, 11 (1952), “[if] we were to hold that sum.

mary punishment can be imposed only instantly upon the

event, it would be an incentive to pronounce, while smarting

under the irritation of the contemptuous act, what should

be a well-considered judgment.” A trial judge who attempts

to hear his own contempt charges cannot, in the nature of

things, be the “neutral and detached” officer required by

due process. Ward v. Village of Monroeville, 409 U.S. 57,

62 (1972).

The only possible justification for requiring a different

rule for summary contempts during a trial is that such

power is necessary to maintain order as the trial proceeds.

As Justice Frankfurter said in dissent in the Sacher case:

Summary punishment of contempt is concededly an

exception to the requirements of Due Process. Neces-

sity dictates the departure. Necessity must bound its

limits. 343 U.S. at 36.

The necessity for summary contempt will be examined in

the following section.

C. The Summary Contempt Power Is Not Necessary to Maintain

Order in the Court.

In reaching its conclusion that the summary contempt

power should be done away with, Amicus has not ignored

the justifications that have been offered for it. The most

important of these is that trial judges require such authority

to maintain order in the court. Everyone recognizes the

importarice of a tranquil courtroom to assure the proper

administration of justice, but summary power is not neces-

sary to achieve this end. As Justice Frankfurter said, dis-

senting in Sacher:

—_—

17

[The] administration of justice and courts as its instru-

ments are vindicated, and lawyers who might be

tempted to try similar tactics are amply deterred, by

the assurance that punishment will be certain and

severe regardless of the tribunal that imposes it. 343

U.S. at 37.

This Court has afforded trial judges ample power to deal

with contemptuous behavior. As far as defendants are con-

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

trial judges a variety of weapons to meet misconduct. A

trial judge can act with escalating steps against a defendant

—by warning, removal, binding and gagging, or a citation

for contempt. A defendant who has been cited knows that

after trial he will be subject to a hearing and possible con-

vietion and punishment, which should be sufficient to deter

him from wayward action and to enable a judge to control

his courtroom. Whatever additional “flexibility” the sum-

mary contempt power may provide is outweighed by the

significant objections to it.

To the argument that immediate action is necessary to

deter others from attempting similar conduct which might

abort the trial, the prompt citation of a defendant or other

misbehaving person for contempt is “immediate action.”

The threat of a later criminal trial, with the possibility of a

conviction and severe penalties, is a sufficient deterrent

against further disobedience within the court.

As far as lawyers are concerned, the same considera-

tions apply. A lawyer cited for contempt faces not only

the possibility of subsequent trial and conviction, but the

likelihood of professional discipline as well, in the form

of censure, suspension or disbarment. Some judges have

18

found it expedient to impose civil contempt sanctions (not

to exceed overnight incarceration) during the trial to keep

proceedings moving. See Disorper in THE Court, 102-105,

158-159. In extreme cases, the power to remove a lawyer

from a case has been exercised, Laughlin v. Eicher, 145 F.

2d 700 (D.C. Cir. 1944). In view of the limited amount of

lawyer misconduct found by the Special Committee, those

sanctions should be more than enough to deter misconduet

by a lawyer. See Disorper 1n THE Court, 131-132.

It is often said that the summary contempt power is

needed for swift imposition of penalties. If a second con-

tempt hearing before another judge is required, a long

period may elapse. In addition, the second hearing may

have to be long and complicated, thus adding to the delay

in reaching a final decision. This is true, but this alone does

not justify the extraordinary power to punish summarily.

All criminal trials involve some delay, and the delay inci-

dent to a full contempt hearing is no more dangerous to the

administration of justice than the delays incident to the

procedural steps required by the Bill of Rights. Procedural

safeguards in the legal. process always make a criminal

trial more complicated and costly than arbitrary arrest

and punishment would be. As Justice Black said in the

Green case:

It is undoubtedly true that a judge can dispose of

charges of criminal contempt faster and cheaper than

a jury. But such trifling economies as may result have

not generally been thought sufficient reason for aban-

doning our great constitutional safeguards aimed at

protecting freedom and other basic human rights of in-

calculable value. Cheap, easy convictions were not

the primary concern of those who adopted the Constitu-

—_——

19

tion and Bill of Rights. Every procedural safeguard

they established purposely made it more difficult for

the Government to convict those it accused of crimes.

On their scale of values justice occupied at least as

high a position as economy. 356 U.S. at 216.

It is also important to lay to rest the suggestion that a

later hearing is unnecessary because the trial judge “has

already witnessed directly” the events leading to the con-

tempt citation. This point has been met very well by an

analysis in the Wisconsin Law Review:

The existence of eyewitness testimony, even if uncon-

troverted, has never been considered grounds for aban-

donment of due process of law. If due process is to

mean anything at all, it must mean that guilt may not

be presumed, but must be proven. To hold otherwise

is to say that when guilt is certain, proof is superfiuous.

But a legal system which operates according to such

tautologies plants the very seeds of despotism, which

due process of law seeks to destroy. Note, “Criminal

Law—Contempt—Conduct of Attorney During Course

of Trial,” 1971 Wise. L. Rev. 329, 347.

Furthermore, since it is clear’ that a judge can often

become personally embroiled or that personal stings may

have left their marks, one can no longer assume that the

trial judge has dispassionately and clearly viewed what oc-

curred at the trial. Once it is recognized that due process

requires an unbiased judge to determine guilt and punish-

ment, the argument that it is “unnecessary” to have a sepa-

rate hearing loses its force.

on

20

A further argument in favor of summary contempt is

that appellate review may cure any defect in the summary

proceeding. But there are serious shortcomings in appel-

late review. The appellate court reviewing a summary con-

tempt hearing can decide only on the basis of the original

record. If there is a claim of bias or personal embroil-

ment, a defendant should have the right to offer supporting

evidence to show that he was not guilty of obstructing the

trial. This can be done in a separate due process hearing

before another judge but not on appellate review.

Any attempt to abolish the summary contempt power will

be met with the claim that it is necessary to maintain re-

spect for and discipline in the courts. The same argument

was made when restrictions were placed on the ability of

courts to punish printed criticism of court action or to

punish conduct outside the courtroom by a term longer

than six months. These claims were not justified in the

earlier cases, and we do not think they are justified here.

As this Court said in Bloom y. Illinois, 391 U.S. at 208,

“Genuine respect, which alone can lend true dignity to our

judicial establishment, will be engendered, not by the fear of

unlimited authority, but by the firm administration of the

law through those institutionalized procedures which have

been worked out over the centuries.”

It is interesting to note that many European countries

do not permit a trial judge to impose sentences as long as

six months for contempt. They generally grant a judge

power to remove any person creating disorder in the court.

If the person forcibly resists an order to leave the court,

greater penalties are possible. See Disorper IN THE Court,

238, n. 70.

21

Courts and legislatures have come to recognize the abuse

of summary contempt power. As noted above, the State of

Alaska has eliminated summary contempt by judicial de-

cision. In 1971 the State of Connecticut passed a law re-

quiring a different judge to pass on all contempt charges.

Connecticut Public Act No. 779 (1971). Kentucky itself

(in Kentucky Rev. Stat. 432.260) placed a limit of 30 hours

imprisonment for contempt if a judge imposes sentence

without a jury. However, the court below held that limita-

tion to be unconstitutional since it interfered with the ad-

ministration of justice! By the same token, every right

in the Bill of Rights “materially interferes with the ad-

ministration of justice” since it makes punishment more

difficult.

As a judge of the Pennsylvania Supreme Court has writ-

ten:

Why should we allow a judge or (Justice) to have a

special privilege when the judicial function is al-

legedly obstructed? There is constitutional silence

concerning any special judicial privilege which permits

the judicial branch to deprive a person of constitutional

rights because a member of the judicial branch is in-

volved. Punishment for contempt of court without

constitutional protections that exist for all other crimes

is nothing more than the exercise of raw judicial power.

It is not the exercise of constitutional judicial au-

thority. ... The obstruction of justice, in any way, at

any time, by any person, is a serious offense. We have,

however, other workable procedures to prevent disrup-

tions in the courtroom. We do not need a special privi-

lege for judges which dispenses with constitutional

safeguards. Commonwealth v. Patterson, —— Pa.

—, 308 A. 2d 90, 95 (1973) (Manderino, J. dissent-

ing).

—

22

The time has come to eliminate this most serious and

unnecessary anomaly in the administration of justice.

POINT I

The trial judge below was required to refer the con-

* tempt proceedings to another judge for a full due process

hearing.

‘Even if this Court does not find that summary contempt

per se violates the due process clause, it must still reverse

the judgment below, Under existing precedents of the

Court, there were so many violations of proper procedures

that the conviction cannot stand. These include the fact

that (1) the judge was personally embroiled with the al-

leged contemnor; (2) the four-and-a-half year sentence

originally imposed was a recognition of the seriousness of

the offense which, therefore, required a jury trial; and

(3) a proper hearing was not afforded the petitioner.

A. The Trial Judge Could Not Impartially Sit in Judgment of

the Contempt Charges Against Petitioner.

As noted above, Offutt v. United States, 348 U.S. 11

(1954) established the proposition that a judge who be-

comes personally embroiled with the alleged contémnor can-

not sit in judgment of the contempt charges. Mayberry

went further and said that if a judge has been the victim

of a personal attack, he must refer any contempt charges

to another judge. If there is evidence of bias, Johnson v.

Mississippi, 403 U.S. 212 (1971) requires that the matter

be heard by a second judge.

In the instant case, there is overwhelming evidence of

the judge’s personal animus against the petitioner. Peti-

23

tioner in his main brief cites numerous instances in which

the judge cast aspersions on his character or motives. Dur-

ing the voir dire, the trial judge interrupted the petitioner’s

examination of a prospective juror and stated that he was

going to take it over, saying 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

attorneys, 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 interchange the trial judge again in-

sisted on indulging in personalities and baiting the peti-

tioner :

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 at-

tempted 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 configurations

and put on an act (Tr. 1860). :

At a later point, the following exchange occurred:

Mr. Taylor: Thank you. Now, may I say, addition-

ally, I have serious doubts as to the legal correctness

of the order and since we have, I have, I don’t know,

24

five months 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 (Tr. 1957).

Just before the trial judge below passed sentence he made

the following comments about the petitioner:

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

you (sic). 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 in 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

that 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 inter-

ested in Dan Taylor or Narvel Tinsley.

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. I want the

jury to hear this; I want the law students of this com-

munity to hear_this, that you’re not the rule, you're

the exception to the rule—

—_—

25

Mr. Taylor: (Interrupting) Thank you.

The Court: I want them to understand that your ac-

tions should not be their actions because this is not the

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

officer of a court should conduct itself (sic). 494 S.W.

9d at 742.

It should be noted that these comments were very similar

to those made by the trial judge in Offutt which, according

to this Court, showed “personal embroilment” on his part.

348 U.S. at 16, 17.

However one views the frequent encounters between the

parties and however one attributes blame for them, there

was clearly an adversary posture between petitioner and

the trial judge throughout the: proceedings. There was

nothing subtle, hidden or uncertain about the judge’s ani-

mosity toward petitioner. In addition to the exchanges

quoted above and in petitioner’s brief, the judge originally

sentenced petitioner to 54 months in jail for nine counts

of contempt. On two counts the sentence was one year which

was later amended to six months each. The trial judge

also suspended petitioner from practicing in his court ever

again. (This order was reversed by the Kentucky Court

of Appeals.) It would be difficult to find more blatant ex-

amples or more concrete evidence of personal involvement

by a judge than is found in the instant case.

The Court of Appeals said in United States v. Meyer,

462 F.2d 827, 841 (D.C. Cir. 1972) that “when the judge

adopts an adversary posture with respect to the alleged

contemnor,” referral to an impartial judge is necessary.

That situation is clearly present here. For that reason

alone the conviction below must be reversed.

oe

26

B. Petitioner Was Entitled to a Jury Trial Because of the

Seriousness of the Offense With Which He Was Charged.

There are only two ways in which to view the fifty-four

month sentence originally imposed on the petitioner by the

trial judge. It could have been a reflection of the personal

animosity of the trial judge toward the petitioner, in which

ease referral to another judge was required by Offutt and

Mayberry. Or, assuming for the moment that the sentence

was the result of sober consideration and dispassionate judi-

cial reasoning, it was a reflection of the seriousness of the

offense with which petitioner was charged. In the latter

case, the charges should have been heard by a jury.

This Court held in Duncan v. Louisiana, 391 U.S. 145

(1968) that trial by jury was fundamental to the American

scheme of justice and that the Sixth Amendment guarantee

of jury trial was applicable to the states through the Four-

teenth Amendment. “ ... a general grant of jury trial

for serious offenses is a fundamental right.” 391 U.S. at

157-158. The Court held that trial of simple battery under

state law required a jury trial since the maximum penalty

possible was two years, even though the defendant in that

case had only been sentenced to 60 days in jail. “The

penalty authorized by the law of the locality may be taken

‘as a gauge of its social and ethical judgments’. . . of

the crime in question.” 391 U.S. at 160. Thus if the maxi-

mum penalty for an offense exceeds six months, a jury

trial is necessary.

Where contempt is involved and no maximum penalty

is fixed by statute, different calculations apply. This Court

held in Frank vy. United States, 395 U.S. 147, 149 (1969):

In ordinary criminal prosecutions, the severity of the

penalty authorized, not the penalty actually imposed,

ee

—

27

is the relevant criterion. In such cases, the legislature

has included within the definition of the crime itself

a judgment about the seriousness of the offense. See

Duncan v. Louisiana, ...-. But a person may be found

in contempt of court for a great many different types

of offenses, ranging from disrespect for the court to

acts otherwise criminal. Congress, perhaps in recogni-

tion of the scope of criminal contempt, has authorized

courts to impose penalties but has not placed any

specific limits on their diseretion; it has not categorized

contempts “serious” or “petty.” 18 U.S.C. §§ 401, 402.

Accordingly, this Court has held that in prosecutions

for criminal contempt where no maximum penalty is au-

thorized, the severity of the penalty actually imposed

is the best indication of the seriousness of the particu-

lar offense.

In Chef v. Schnackenberg, 384 U.S. 373 (1966) this Court

approved a six month sentence for criminal contempt im-

posed by a federal court of appeals for violation of its

order. But this Court’s holding in Frank and in Chef v.

Schnackenberg cannot mean that a serious contempt may be

tried and punished by a judge alone without a jury if

eventually, some appellate court will reduce the sentence

to six months. This Court emphasized in Frank that there

must be “objective indications of the seriousness with which

society regards an offense.” 395 U.S. at 148. These “objec-

tive indications” cannot be disregarded or overcome by an

appellate court retroactively imposing & six month ~

tence.

2 |

In Bloom v. Illinois, 391 U.S. 194 (1968) the defendant!

was sentenced to 24 months in jail for criminal contempt by:

28

a judge sitting without a jury. It was clear that the Illinois

courts thought that the offense involved was a serious one,

However, this Court did not attempt to undermine the right

to a jury trial by retroactively reducing the two year sen.

tence to six months. If appellate courts are permitted to de.

prive a defendant of the right to jury trial by reducing

every contempt sentence to six months, this Court’s holding

in Bloom that serious contempts must be tried by a jury

becomes meaningless. It can easily be evaded in every case

through the device used by the Kentucky court below.

The correct rule must be that some contempts are so seri-

ous that jury trial is required under the Fourteenth Amend-

ment. The seriousness of the offense is not determined only

by what an appellate court later decides about the sentence.

There is nothing in the opinions below that indicated that

either the trial judge or the Kentucky Court of Appeals

thought that petitioner’s actions in court were not serious

offenses. Indeed, strong condemnation of petitioner’s deeds

pervade the opinions below. The Kentucky Court of Ap-

peals said:

We have examined the entire record of the Tinsley

trial, and it becomes immediately apparent that even

before the trial had “gotten off the ground, so to speak,”

Taylor had embarked upon a plan or program designed

to disrupt the trial and by any means possible cause

the trial court to commit trial errors which might form

the basis of an appeal. His actions were such as to

clearly illustrate that they were deliberate, delaying,

or planned disruptive tactics which did in fact create

such an atmosphere in the court that he, if permitted

to continue, would have appeared to be the star per-

former in the center ring of a three-ring circus. He

———

29

constantly harassed the court by innumerable objec-

tions, statements, and requests for conferences in cham-

bers, and, in truth, the record indicates that a great per-

centage of the trial time was consumed by the court and

counsel attending speeches made by Taylor in the

eourt’s chambers. 494 S.W.2d at 740.

The seriousness of the offense, for the purpose of deter-

mining the right to a jury trial, must be determined by ob-

jective criteria before or during the trial. In United States

y. Seale, 461 F.2d 345, 356 (7th Cir. 1972) the Seventh

Circuit held that on remand of the contempt charges in that

case, “If the judge to whom this case *s referred for trial

decides that the outside limit of a sentence for Seale should

be six months maximum including cumulation, that would

obviate the necessity of having a jury on the remand.” In

this way the Court of Appeals eliminated the uncertainty

whether a jury was necessary Or not.

In cases where contempt citations are imposed during the

trial, the penalty actually imposed by the trial court is the

most reliable, objective criterion to determine the right

toa jury trial. Certainly the sentence by, and the comments

of, the trial judge below were a forceful declaration of how

serious the offense was considered. It can well be argued

that any criminal contempt involving courtroom misconduct

is serious enough to warrant jury trial. If the offense has

been regarded as so serious that it justifies immediate sum-

mary action, it is serious enough to trigger the jury trial

requirement of the Fourteenth Amendment.

30

C. A Proper Hearing Was Not Afforded the Petitioner Below,

Many decisions of this Court have emphasized the need

for a hearing before any punishment may be inflicted or

any rights or benefit lost. “[W]Je have stated time and

time again that reasonable notice of a charge and an oppor.

tunity to be heard in defense before punishment is imposed

are ‘basic in our system of jurisprudence.’” Groppi y,

Leslie, 404 U.S. 496, 502 (1972). In Mullane v. Central

Hanover Trust Co., 339 U.S. 306, 313 (1950), the Court

stated:

Many controversies have raged about the cryptic and

abstract words of the Due Process Clause but there

can be no doubt that at a minimum they require that

deprivation of life, liberty or property by adjudication

be preceded by notice and opportunity for hearing ap-

propriate to the nature of the case.

In the instant case no appropriate hearing was afforded

the petitioner before the trial judge held him in contempt

and sentenced him to 54 months in jail. During the trial

the judge informed petitioner nine separate times that

he was in contempt. On each count either the judge would

not let him respond for the record or a discussion of a sub-

stantive issue would ensue. After the verdict was rendered

in the trial, the judge called the petitioner before the bar

and told him that he had put on “the worst display I’ve

ever seen an attorney” engage in. He made other disparag-

ing remarks and then would not permit petitioner to re-

spond:

The Court: I want them to understand that your ac-

tions should not be their actions because this is not

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

an officer of a court should conduct itself (sic).

—7—V“~—~—_

31

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

The Court: (Interrupting) You're not responding 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: I’ll do that—

Mr. Taylor: (Interposing) My lawyers will respond to

you—

The Court: (Interposing) Tl 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.

= 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; 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.

32

The Court: I’d be glad to see you (Appendix, pp. 58.

59).

With respect to the substantive charges themselves, peti.

tioner in his main brief has pointed out that there was no

proper notice of the individual charges against. petitioner

and no meaningful opportunity to respond to them. A read.

ing of the record bears out this contention.

But even if the contempt citations were properly im-

posed, the lack of opportunity at the end of the trial to

offer any meaningful response violated due process. De-

spite the fact that the trial judge may have viewed the con-

duct giving rise to the charges, there are many matters

which the petitioner could have offered in his defense.

(1) He could have tried to show that the conduct did

not “block the judge in the performance of his judicial

duty,” In re McConnell, 370 U.S. 230, 236 (1962).

(2) He could have tried to show that there was no in.

tent to obstruct the administration of justice. See, eg,

United States v. Seale, 461 F.2d 345, 365 (7th Cir. 1972).

(3) He could have tried to show that the judge had con-

fused “offense to [his] sensibilities with obstruction to

the administration of justice.” Brown v. United States, 356

U.S. 148, 153 (1958).

(4) He could have tried to persuade the judge not to

impose or to reduce the sentence through his exercise of

the right of allocution. “. .. the contemnor has normally

been given an opportunity to speak in his own behalf in

the nature of a right of allocution.” Groppi v. Leslie, 404

U.S. 496, 504 (1972).

a

33

A recent Court of Appeals decision has expressly upheld

the right of an alleged contemnor to allocution before sen-

tencing. In Weiss v. Burr, 484 F.2d 973, 984 (9th Cir.

1973), the Court noted:

The last and most difficult question is whether the

trial court’s contempt procedures in respect to the

three remaining citations infringed Weiss’s constitu-

tional right to speak in defense and mitigation before

being sentenced. See Groppi v. Leslie, supra, 404 U.S.

at 501. We hold that they did. Due process requires

that contemnors such as Weiss, who are not cited and

simultaneously punished for the purpose of either re-

storing courtroom decorum or protecting the safety of

court officials are entitled to an opportunity for allocu-

tion.

The Second Circuit has more recently held that the right

of allocution is not enough in a contempt case. There must

be a more meaningful opportunity to be heard in mitiga-

tion of the offense. In United States v. Wilson and Bryan,

—_— F.2d ——- (2d Cir. November 28, 1973) the court re-

versed a summary contempt citation imposed on a witness

after an orderly refusal to answer certain questions. To

the objection that an adequate hearing was given the al-

Jeged contemnors, the court said:

Nor is the bare “opportunity to be heard” dispositive

here since the “hearing” was confined to the matter of

sentence. If, however, counsel had been given “a rea-

sonable time for the preparation of the defense” (Fed.

R. Crim. P. 42 [b]); she might have marshalled and

presented facts in mitigation of the charge. Signif-

icantly, the record reveals the possibility of a psychi-

atric defense, at least for Wilson. Some of Wilson’s

34

psychological problems, disclosed by a court-ordered

study, were explored at an abortive sentencing hear.

ing on his guilty plea, preceding the refusal to testify,

With respect to that conviction, Judge Lasker con.

cluded: “I do not believe that in this complicated cage

I have sufficient information before me to permit me

justly to proceed to sentence with Mr. Wilson.” Shortly

thereafter, nonetheless, he proceeded to sentence him

for contempt. With additional time to prepare a de.

fense, counsel for Wilson might have enlarged on the

issue of appellant’s mental health, and perhaps shown

a relationship between any psychological difficulties

and the refusal to serve as a witness. Finally, because

of the posture of the case, the record is silent on other

facts which may well exist in defense or mitigation of

the charge against both appellants, and which could

be properly developed at a plenary hearing.

Speaking more generally, the Advisory Committee on the

Judge’s Function of the American Bar Association Project

on Standards for Criminal Justice has stated:

F'4 Notice of charges and opportunity to be heard

Before imposing any punishment for criminal con-

tempt, the judge should give the offender notice of the

charges and at least a summary opportunity to adduce

evidence or argument relevant to guilt or punishment.

Commentary

Although there is authority that in-court contempts

can be punished without notice of charges or an op-

portunity to be heard, Ex parte Terry, 128 U.S. 289

(1888), such a procedure has little to commend it, is

inconsistent with the basic notions of fairness and is

—_——

35

likely to bring disrespect upon the court. Accordingly,

notice and at least a brief opportunity to be heard

should be afforded as a matter of course. Nothing in

this standard, however, implies that a plenary trial of

contempt charges is required. Advisory Committee

on the Judge’s Function of the American Bar Asso-

ciation Project on Standards for Criminal Justice.

The Judge’s Role in Dealing with Trial Disruption 20

(1971).

Since no meaningful hearing was afforded the petitioner,

the judgment below must be reversed.

CONCLUSION

For the foregoing reasons, the Association respectfully

submits that the judgment below should be reversed.

Respectfully submitted,

Burke MarsHALL

Yale University

Law School

~. New Haven, Connecticut

Leon FRIEDMAN

Committee for Public J ustice

22 Bast 40th Street

New York, N. Y. 10016

Norman Dorsen

NYU Law School

- 40 Washington Square, South

New York, N. Y. 10012

Attorneys for the Association of the

Bar of the City of New York

Dated: New York, New York

January 17,1974 |

j