Respondents Brief — Taylor v. Hayes

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LAWIVERS PRINTING CO. P.O. BOX 7742. LOUISVILLE. KY. 40207

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‘|. In the Circumstances of This Case, the Trial

Judge and Respondent Could Impartially Sit

in Judgment on Multiple Contempt Charges

Against the Petitioner ...................... 15-23

Il. The Petitioner was not Deprived of Due

Process of Law When the Trial Judge Found

Him Guilty of Contempt During the Trial,

Gave a Reasonable Opportunity for Allocution

and Withheld Punishment Until After the

Ill. As Petitioner’s Sentence was Actually Six

Months, He Was Neither Charged With nor

Convicted of a Serious Offense Within the

Meaning of the Sixth Amendment’s

Guarantee of Trial by Jury ................ 33-43

PMI 6 5 n6i645 odcee cass choses vesaws dias 43-49

AUTHORITIES CITED

PAGES

CASES: Be

Bartone v. United States, 375 U.S. 52, 11 L.Ed.

2d 11, 84 S.Ct. 21 ©... ee. 41

Bloom v. Illinois, 391 U.S. 194, 20 L.Ed. 2d 522,

QB S.Ct. 1477... ose ccc den eee 29, 36, 44

Bozza v. United States, 330 U.S. 160, 91 L.Ed.

B18 0 ee eee 41

Caine v. Commonwealth, Ky., 491 S.W.2d 824. 41

In Re Channels, 131 Ky. 737, 100 §.W. 214.... 42

Commonwealth v. Snyder, Pa., 275 A.2d 312 .. 36

Cooke v. United States, 267 U.S. 517, 537 & 69

Pe ey | Se ee 29

In re Dellinger, 461 F.2d 389, CA 7, 1972...... 3, 16

Dimenza v. Johnson, 131 F.2d 47, CA 9, 1942 . 42

Dominick Codispoti and Hurbert Langnes,

petitioners v. Commonwealth of Penn-

sylvania, respondent, Miscellaneous #73-5615 22

Edge v. Commonwealth, 139 Ky. 252, 129 S.W.

| ee a ne cen ar 42

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,

33 L.Bd..9d S46 0 cee eee ee 41

Jackson v. Commonwealth, 187 Ky. 760, 220

S.W. 1045, 9 A.L.R. 955... 2... 42

Johnson v. Mississippi, 403 U.S. 212, 29 L.Ed. 2d

423, 91 S.Ct. 1778 (1971) .................. 16

Kentucky Bar Association v. Martin, Ky., 490

S.W.2d 759... eee 37

Kentucky Bar Association v. Taylor, Ky., 482

S.W.2d 574..... oe eeegyeeoeneveausaes 32, 38-39, 41

Kentucky State Bar Association v. Brown, Ky.,

302 S.W.2d 834, Income Tax Evasions...... 38

Kentucky State Bar Association v. McAfee, Ky.,

301 S.W.2d 899...... 00, 38

iii

Mayberry v. Pennsylvania, 400'U.8. 455, 91 8.Ct. ‘

499, 27 L.Ed. 2d 532 (1971)................ 3, 15

Miller v. Stevenson, Ky., 474 S.W.2d 372 (1971) 32

Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11,

99 L.Ed. 11 (1964) ........................ 15

People ex rel. v. Green, 7 Colo. 237 (1884) .... 39

Sacher v. United States, 343 U.S. 1, 96 L.Ed. 717,

72 S.Ct. 451........000........ 17-21, .22,.23, 29, 30

Southeastern Promotions Limited v. Conrad, 486

F.2d 894, CA 6, 1973...................... 22

Taylor v. Hayes, Ky., 494 S.W.2d 737 ........ 1

Ex parte Terry, 128 U.S. 289, 32 L.Ed. 405. . 25-29, 30

Tinsley v. Commonwealth, Ky., 495 S.W.2d 776 5

Tinsley, petitioner v. Kentucky, 38 L.Ed. 2d 484 5

Underwood v. Commonwealth, 38 K.L.R. 32, 105

BOG MOE oa cei cd edew ee ne dee ee bu dasdnces ns 38

Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11

L.Ed. 2d 921 (1964)....................... 3, 16

United States v. Barnett, 376 U.S. 681, 12 L.Ed.

2d 23, 84 S.Ct. 984 .......00000 00. 29

United States v. McKinney, 466 F.2d 1403, CA 6,

1972 ...... 00 eee 41

United States v. Seale, 461 F.2d 345, CA 7, 1972 3, 36

In re Viniard, Ky., 406 S.W.2d 736 ........... 41

Young v. Knight, Ky., 329 S.W.2d 195, 77 A.L.R.

Qd 994 2. eee 38

Constitutional Provisions, Statutes and Rules

RCA 3.320..........0.000000 000.00 36-37, 38

U.S. Const. Amend. VI ...................... 33

U.S. Const. Amend. XIV .................... 33

Other Authorities:

Legal Ethics, Henry S. Drinker, 1953 Columbia

University Press, New York, p. 39.......... 39

The Implosion Conspiracy, Louis Nizer, Double-

day and Gompany, Inc., Garden City, New

York, 1973, pp. 356-357, 464 ............... 44-46

SUPREME COURT OF THE UNITED STATES

No. 73-473

DANIEL T. TAYLOR, II 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 FOR THE RESPONDENT

CITATION TO OPINION BELOW

The opinion of the Court of Appeals of Kentucky,

Taylor v. Hayes, is officially reported in Ky., 494 S.W.2d

737 and is printed in the Appendix, pages 5-19.

JURISDICTION

The respondent says that this court granted

petitioner’s petition for a writ of certiorari on December

3, 1973, but limited it to the following questions: (App.

4).

1. When a trial judge summarily imposes con-

secutive sentences on eight counts of contempt

2

aggregating four and one-half years’ imprisonment,

including sentences of one year’s imprisonment on

two counts, whether he or the appellate court may

subsequently, in order to defeat the alleged contem-

nor’s right to trial by jury, reduce the sentences so

that the sentence on no one count exceeds six

months’ imprisonment and direct that the

sentences run concurrently for a total of six months’

imprisonment?

2. When alleged contempts have been committed

by an attorney in the presence of the trial judge and

the trial judge proceeds summarily to punish for

contempt, whether due process requires that the at-

torney be given some opportunity to be heard in

defense or mitigation before he is finally adjudged

guilty and sentence is imposed?

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

trial judge could impartially sit in judgment on

multiple contempt charges against the petitioner?

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent agrees that petitioner has claimed rights

under the Sixth and Fourteenth Amendments to the

United States Constitution, but does not agree that any

right of petitioner’s has been violated.

QUESTIONS PRESENTED

1. When a state trial judge corrects judgments of

contempt with the approval of the state’s highest court

and the result is that the contemnor’s actual sentence

does not exceed six months, does this violate contem-

nor’s right to a trial by jury?

3

2. Where, during the trial, petitioner arid contem-

nor has been held in contempt outside the presence of

the jury and throughout the trial given reasonable op-

portunity to respond, and where, in some cases,

petitioner availed himself of the opportunity, and in

other cases he did not, was he entitled to a further hear-

ing before punishment was imposed?

3. Where, after petitioner and contemnor was ad-

judged to be in contempt for the first time, and this con-

tempt finding was later modified to a warning, and

where throughout a protracted trial the respondent, the

presiding judge in a murder trial, showed consideration

to petitioner, a lawyer, and where there were no

obscenities, vilifications or vitriolic exchanges, and

where the entire record showed that respondent acted

with restraint, and none of the facts which existed in

Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499,

27 L.Ed. 2d 532 (1971), United States v. Seale, 461 F.2d

345, CA 7, 1972, In re Dellinger, 461 F.2d 389, CA 7,

1972, or Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11

L.Ed. 2d 921 (1964) existed, was the trial judge required

to recuse himself and allot the case to another judge for

the imposition of the sentences on the contempt

judgments?

STATEMENT OF THE CASE*

The respondent, John P. Hayes, at all times material

herein was and is Judge of the Jefferson Circuit Court,

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

that are not included in the A ix are indicated by the prefix “Tr.”

References to the Transcript of in Commonwealth v. Tinsley are in-

dicated by the prefix “R.”

a

4

Criminal Branch, Second Division, a court of general

jurisdiction within the Commonwealth of Kentucky.

Jefferson County is Kentucky's largest county, and

Louisville is its county seat. It has seven Common Pleas

Judges, six Chancellors and three Criminal Judges for a

total of sixteen Circuit Judges.

These ings arose from the trials of Narvel

Tinsley an illiam Michael Tinsley. The petitioner

represented Narvel Tinsley, and Messrs. Robert Flem-

ming, Tim McCall and Charles Scott represented

William Michael Tinsley. It was alleged that William

Michael Tinsley and his brother, Narvel Tinsley,

murdered two Louisville policemen. The evidence

showed that William Michael Tinsley shot one

_policeman, and Narvel Tinsley shot the other.

The slaying of the two officers and the ensuing events

engendered much publicity via the media, and this was

compounded by Narvel Tinsley’s escape from the Jeffer-

son County Jail shortly before the trial commenced.

Because of this, the trial judge permitted great latitude

on voir dire and only limited it when the privilege was

obviously being abused. It took three days, four volumes

and 720 pages to select fourteen trial jurors (TR Vols. 1,

2, 3 and 4).

During the trial, several motions were made for a

severance and for a mistrial. The motions were primari-

ly made by counsel for William Michael Tinsley,

although joined in by petitioner, because the defenses

between the two Tinsleys were antagonistic and because

counsel for William Michael Tinsley contended that the

conduct and antics of the petitioner, counsel for Narvel

Tinsley, were greatly prejudicing the rights of William

Michael Tinsley. These motions were all overruled. The

_ ——

5

Kentucky court affirmed the convictions of William

Michael and Narvel Tinsley, Tinsley v. Commonwealth,

Ky., 495 S.W.2d 776. Certiorari was denied William

Michael Tinsley, #73-5517, William Michael Tinsley,

petitioner v. Kentucky, 38 L.Ed.2d 484.

The complexities of the trial coupled with the

seriousness of the charges and the possible verdicts

called for the most careful and studied advocacy. It is

obvious from a cursory examination of the transcript

that the worst possible tactic would be to inflame or an-

tagonize a jury already combustible because of the basic

facts of the case. Notwithstanding this, the petitioner

proceeded to engage in conduct and demean himself in

such a manner that causes utter disbelief when con-

sidered in view of the total circumstances. We turn now

to the events leading to the respondent's citation of

petitioner for eight separate counts of criminal con-

tempt.

We start with Volume II of the Transcript (TR 347)

(App. 30) where the court for the first time held Mr.

Taylor in contempt for repeatedly asking questions he

had been directed not to ask. At this point, the court in-

dicated it was going to take over the voir dire, and the

colloquy continued through TR 358 (App. 37). The

respondent rescinded his order of contempt and warned

Mr. Taylor. Respondent admonished Mr. Taylor that

his rules were to be obeyed (TR 357) (App. 367). The

court softened his ruling relative to taking complete con-

trol of the voir dire (TR 354) (App. 34). A complete dis-

cussion was engaged in between court and counsel

relative to petitioner's conduct. It/is obvious that

respondent showed great restraint ahd great considera-

6

tion in the proceedings concerning this first incident

(App. 39).

The first actual contempt citation was not imposed

until Friday, October 22, 1971 (App. 42-54) when the

court cited Taylor for contempt because he completely

and continuously ignored the court’s order not to discuss

Narvel Tinsley’s escape from the Jefferson County Jail.

The court also criticized Taylor’s courtroom antics, and

a colloquy took place. Taylor had referred to the escape

at TR 1078 and after an objection was sustained to it at

TR 1078, he referred to that “little old case in the Jeffer-

son County—.” Taylor was given an opportunity to res-

pond for the record. (Although Taylor had been told

directly by the court how to use a previously written

statement, TR 1072, he ignored this at TR 1075, 1076,

and proceeded to inferentially and directly disregard the

court’s order (TR 1071, 1080).)

The next contempt citation occurred October 23,

1971 and may be found at App. 56. After the court ad-

monished Taylor to stop arguing, Taylor replied, “I'll

certainly keep that in mind, Your Honor.” in a con-

temptuous and smart aleck manner. Taylor responded

to this citation (App. 56-64). The court comments on

Taylor’s tone of voice, his motions and his antics at App.

59.

The next contempt occurred during the cross-

examination of Narvel Tinsley by Mr. Schroering (App.

69). The court told Taylor to sit down. Taylor in-

terrupted, the court overruled him, Mr. Taylor con-

tinued, and the court overruled him again, at which

time the proceedings were adjourned to Chambers

where again Taylor was cited for contempt of court

—

7

(App. 69). Mr. Taylor was permitted to respond (App.

70-79). While in Chambers and at TR 1804, the court

again admonished petitioner when he ruled that was it

and that when he told Taylor to sit down, he meant sit |

down. In other words, he told him to stop arguing with

every ruling of the court and to obey the orders of the

court. We note Mr. Schroering’s comments about Mr.

Taylor's behavior (App. 78-79).

The next contempt occured in Volume XIII of the

Transcript and involved Taylor's direct examination of

Ervin Foley, Legal Advisor to the Police Department

(App. 97). Taylor was given an opportunity to respond

to the contempt citation. An objection had been

sustained to Taylor referring to a press conference, and

he became obstreperous with the court relative to some

seating arrangement and gave a smart aleck reply to the

court’s ruling (App. 95-96). The next contempt involved

witness, Jesse Taylor, and related to the use of a state-

ment. The court had sustained an objection to Taylor’s

use of the statement (App. 105) and notwithstanding

this, Taylor continued to ask the very questions to which

the court had sustained an objection (App. 105-106) and

respondent again held him in contempt and told Taylor

he could respond at the next recess (App. 107).

Contempt number seven again involved Taylor going

into the press conference and for waving his arms at a

witness in such a fashion that caused counsel for

William Michael Tinsley to object (App. 108). When

Taylor was actually held in contempt and given an op-

portunity to respond for the record, he did. After the

court returned, he wanted the record to reflect that at no

time had Mr. Schroering been held in contempt. The

8

fact that the court briefly left the room in no manner

prevented Taylor from denying that he had disobeyed

the court’s order or that he had not flapped his arms in a

contemptuous manner. As far as the record shows, he

may have responded, but if he did not, no bystander’s

bill was presented or filed.

The next contempt occurred at App. 113. Taylor had

completed the direct examination of Lt. Garrett when it

was called to the court’s attention that one of Mr.

Taylor’s aides had not been searched. The court told

Taylor to proceed and Taylor refused. Although the

court directly told Taylor to proceed, Taylor refused. He

responded (App. 115-116).

The last contempt occurred at App. 117-119 when

Taylor asked witness Miller if he had “talked with this

nice police officer—.’”’ This inspired an outburst of

laughter from the audience (App. 118). Taylor con-

tinued his improper examination of this witness in

direct disobedience to the court’s order (App. 119), and

Taylor made no request to be heard in defense or mitiga-

tion.

He responded to all contempts in his final argument

(App. 119).

The foregoing actions on the part of Taylor were all

in direct disobedience to a direct order of the court. All

of the actions were designed and calculated to

demonstrate utter disrespect to the court and the total

administration of justice. Taylor was given a reasonable

chance to respond, yet at no time during the entire

transcript are any of the facts upon which the contempt

charges were based put into serious issue. It will be

m observed that during these entire proceedings, the court

9

exercised restraint, was most careful not to cite Taylor

for contempt in the presence of the jury and did

everything but beg him to behave himself. This —

disdainfully refused to do.

We are mindful that this court did not grant cer-

tiorari on the question of whether or not Taylor's actions

were contemptuous. We have, however, reviewed the

testimony which gave rise to the contempt citations for

the purpose of showing that Taylor was granted allocu-

tion and for the further purpose of demonstrating to this

court that the respondent had no personal embroilment

with Taylor which would prevent him from fairly im-

posing sentences at the conclusion of the trial.

Otherwise, the respondent would have cited Taylor

numerous times as this record demonstrates for things

that were said and done in Chambers, e.g. App. 83.

Oftentimes while a jury is out, lawyers make motions

to take up other matters with the court. This record is

barren of any effort on Taylor’s part to further respond

to the contempt citations.

Taylor argued the case for Narvel Tinsley (TR 2196-

2245), but he spent more time in the defense of his own

conduct than he did that of Narvel’s.

After the verdict, the polling of the jury, and oral

motions for a new trial on behalf of William Michael

Tinsley and Narvel Tinsley, respondent imposed

punishment on petitioner for the contempts of which he

stood convicted (TR 2285-2287). The point should be

made here that it is respondent’s position that allocu-

tion was granted before the punishments were imposed.

The allocutions were granted at the time the contempts

occurred, or at least the reasonable opportunity was

10

given to respond, up until the sentencing transpired. We

make the point now because it will be emphasized

throughout this brief. We would ask the Court to

remember that at some point the court must have the

last word. It must also be remembered that the con-

tempts for which petitioner was cited occurred in open

Court in the presence of the jury, were transcribed by

the official court reporter, but the actual citations were

not imposed except in Chambers or out of the hearing of

the jury.

After punishment was imposed, the judgment im-

posing the sentences was corrected, the sentences

reduced and the requirement that the sentences be

served consecutively was eliminated. This was done on

notice to petitioner’s counsel (App. 27), and oddly

enough petitioner’s counsel objected. Although

petitioner now claims that this was a deliberate action

on the part of respondent to deny him a trial by jury,

this was not the basis of petitioner’s response to Judge

Hayes’ motion to correct the judgment.'

' Court of Appeals of Kentucky, ane T. Taylor, Ill, Petitioner-

Apostont y- John F P. Mayen, < ae eg ircuit Cunt, Criminal Rreaeh. ag

vision, Respondent-A ion Correct

ment. Comes now, Daniel T. ylor, I por thane lant herein, by

Ses Seca Ge bemcoauctigegensen beeen

ab aneee Ss appellant shows to the Court as follows: 1. The

motion is made 10.10, whlch: sehuns eahy us hasioal snisahien ate

errors arising from wom or omission. The motion states that there

eeeape be eight counts of contempt instead of nine, the first count having

been changed to a It then states that the motion is made to comp-

lv with recent Supreme Court cases. 2. Nowhere does the respondent-

appellee indicate when the first count was changed to a warning. He does

not state that it was done during the trial, and it was not. Obviously con-

scious of having committed serious reversible error, he is trying to undo his

action retroactively. This cannot be done. 3. The respondent-appellee

held the petitioner guilty on nine counts of contempt and sentenced him to

four and one-half years in prison, as the record reveals. If he gave a proper

warning during the trial, this will a in the record. The record and the

respondent-appellee’s actions speak for themselves, and it is on this record

~~

11

After Taylor’s appeal was perfected to the Court of

Appeals of Kentucky, exhaustive briefs were filed on

petitioner’s behalf. The highest court of Kentucky

rendered its opinion (App. 5-21), and in essence it held:

(1) That Taylor’s actions were deliberate and clear-

ly contemptuous.

(2) That the actual sentence Taylor must serve did

not exceed six months.

(3) “That a great percentage of the trial time was

consumed by the court and counsel attending speeches

made by Taylor in the Court’s Chambers.”

(4) That Judge Hayes was not disqualified to act

because of any personal embroilment in the controversy

as an “activist seeking combat”’ or by reason of personal

attacks upon the Judge which in themselves carry a

potential for bias.

(5) That Taylor was warned upon each occasion of

his contemptuous action and of the court’s holding that

he was in contempt.

(6) That as the corrected judgment did not direct

that the sentences as amended be served consecutively,

they must be served concurrently and that, therefore,

the total sentence actually imposed is a jail sentence of

six months, and that because of this, Taylor was not en-

titled to a trial by jury.

This case has been comprehensively and ably briefed

on behalf of petitioner, and it will be noted that the

(Footnote continued from p: page 10)

that the validity of his actions must be determined. Wherefore, the motion

should be denied. Robert Allen Sedler, College of Law, University of Ken-

tucky, Lexington, Kentucky 40506, Attorney for Petitioner-Appellant.

Notice of Service—I hereby vrata that a copy of the foregoing response

was sent to the respondent cope gan . his office address by mail, first -class

post. pemeeis. S a ~s da February, 1972. Filed February 17,

1972. Frances Clerk Court of Appeals, (Record of Proceedings.

Court of a 7K i, oy

12

respondent has freely consented to the filing of briefs for

amicus curiae. Confronted with the plethora of solemn

legal pronouncements made by our learned brothers, it

is with some trepidation that we now turn to the argu-

ment of this case. Being aware that this court will read

petitioner’s last argument last, we will argue in inverse

order.

SUMMARY OF ARGUMENT

I. The worst argument any lawyer can ever make in

a brief is to request the court, if there is doubt about it,

to read the entire transcript. The transcript in this case

consists of fifteen volumes. We stand on the proposition

that respondent’s actions and treatment of petitioner

did not demonstrate such personal embroilment or

hostility as to require respondent to recuse himself from

passing sentence upon petitioner. The record is replete

with instances of courteous and fair treatment of Taylor

by Judge Hayes, and it is odd that if his intention was to

“bait Taylor” the respondent would have rescinded his

first order of contempt and engaged in a free and frank

discussion of his conduct. The contention that respon-

dend was deliberately out to get Taylor is utter nonsense

and unworthy of those who make it. There were no

vilifications, no insults, no shouting matches, no

epithets or anything else in this record that would

demonstrate a personal hostility. Just because a judge

might say to a lawyer, “If you don’t stop this nonsense,

you’re going to be found in contempt and maybe sent to

jail’, does not indicate a personal bias. In fact, any

judge worth his salt would do just exactly as Judge

Hayes did here, and that is rescind his first order of con-

13

tempt, warn Taylor thoroughly and further provide that

the proceedings were to be kept private so no op-

probrium would attach to Taylor that could possibly in-

terfere with the trial of the case.

II. Petitoner’s claim that he was deprived of due

process of law when the trial judge proceeded summarily

to find him guilty of contempt and to impose punish-

ment totally ignores what happened during this trial.

First, Taylor was warned about his conduct. Second,

each time during the trial that he was cited for con-

tempt, he was so told by the respondent and he was

given a reasonable opportunity to respond. In each in-

stance, he was told or knew what he had done. He had

ample opportunity to respond and in most instances did

ad nauseam. In no instance did he put in issue the

happening of the event for which he was cited. Ad-

mittedly, he argued about the statement, the

blackboard, and the seating arrangements, and the

court’s ruling thereon, but the reason he was held in con-

tempt was because he disobeyed a direct order of the

court while the trial was in process. The contention or

suggestion that this court should consider whether sum-

mary punishment for contempt itself is violative of due

process ignores reality. Regrettably and because of peo-

ple like petitioner, a court must possess the summary

power of contempt. This argument overlooks the rights

of others to a fair and orderly trial. This argument

overlooks the stark fact that there are people who will

deliberately disrupt the trial to gain a legal end. The

public has some rights here, and notwithstanding

amicus’ views to the contrary, other lawyers have some

rights here.

14

Ill. Petitioner’s claim that the original sentence is

inviolate and that the subsequent modification thereof

is of no effect and that, therefore, petitioner’s right toa

trial by jury was violated is ill-founded. This court has

held that the “actual sentence to be served”’ is deter-

minative of whether an offense is a serious one or a petty

one and determinative of the right to a trial by jury.

Although respondent and the Court of Appeals of Ken-

tucky held ultimately the sentences should be served

concurrently, thereby putting a maximum six months

upon it, we are not at all certain that this is the best —

rule. Why should a limit of six months be set forth in ad-

vance unless the trial court chooses to engage in the ex-

haustive process of empaneling a jury and retrying the

whole issue, which the trial court saw and heard, and

then giving the jury vague instructions relative to guilt

and punishment? If, during the trial of a case, a contem-

nor commits thirty contempts, each one warranting

thirty days in jail, why should he not serve thirty

months in jail? If a man is found guilty of three

storehouse breakings and given the maximum of five

years on each, the trial judge has the option of deter-

mining whether they should be served concurrently or

consecutively—five years or fifteen years. Why should

the rule be any different for a contemptuous lawyer? If a

person is locked up and convicted for drunk driving

twice in the same day, that person can certainly receive

two sentences and elongate the period for which his

license is revoked. Thus, it might be well to inhibit the

right of a trial by jury in a contempt case rather than

enlarge it.

IN THE CIRCUMSTANCES OF THIS CASE, THE

TRIAL JUDGE AND RESPONDENT COULD

IMPARTIALLY SIT IN JUDGMENT ON

MULTIPLE CONTEMPT CHARGES AGAINST

THE PETITIONER.

We are absolutely amazed that petitioner and

amicus with a straight face can argue that respondent’s

attitude and treatment of petitioner during the

protracted trial involved here demonstrated “animus

and hostility . . . ” or that he was an “activist seeking

combat” or “obvious lack of impartiality.” In an ob-

vious attempt to mislead this court, petitioner has lifted

discrete items from the transcript in an attempt to make

his point. A review of the colloquy (App. 30-37) com-

pletely disposes of the scurrilous remarks made by

petitioner relative to respondent’s bias. It is inconsistent

with hostility, bias and all other ugly terms employed

that respondent would rescind the contempt order after

a complete and frank discussion with petitioner. All dur-

ing the trial respondent would remind petitioner that

when he made an order, even if he was wrong, petitioner

must obey it. Any other situation would result in chaos.

With the use of unfair and incomplete quotes from

the transcript, petitioner attempts to equate the situa-

tion here to cases like Mayberry v. Pennsylvania, 400

U.S. 455, 91 S.Ct. 499, 27 L.Ed. 2d 532 (1971), where

Mayberry hurled vile epithets at the trial judge, Offutt

v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11

(1954), which was characterized as a shouting match,

$$

and Johnson v. Mississippi, 403 U.S. 212, 29 L.Ed. 2d

432, 91 S.Ct. 1778 (1971), where the trial judge was a

defendant in a lawsuit brought by the contemnor. Nor is

the case like In re Dellinger, 461 F.2d 389, CA 7, 1972,

wherein counsel and the trial judge had a continuous

verbal exchange for four and a half months in front of

the jury.

This case more nearly fits Ungar v. Sarafite, 376 U.S.

575, 84 S.Ct. 841, 11 L.Ed. 2d 921 (1964). Among other

things, Ungar said to Judge Sarafite, “I am not going to

answer your questions Your Honor. I am not going to

testify in this confusion and the court nor anyone else

will make me testify in this emotional state. I am ab-

solutely unfit to testify because of Your Honor’s attitude

and conduct toward me. I am being coerced and in-

timidated and badgered. The court is suppressing the

evidence.”’ Whereupon, Judge Sarafite replied, ‘““You are

not only contemptuous but disorderly and insolent.” It

will be remembered that Ungar, although a witness, was

also a lawyer. A majority of this court affirmed Ungar’s

conviction for contempt by Judge Sarafite. The con-

tempt judgment was imposed two days after the trial.

Mr. Justice Harlan concurred and stated that the con-

tempt procedure employed by Judge Sarafite accorded

Ungar more than is due and that Judge Sarafite could

have proceeded immediately after the trial. It will be

remembered that Judge Sarafite had not told Ungar

that he was in contempt during the trial and would be

punished later as was done in the case at bar by respon-

dent. Mr. Justice Goldberg’s dissent is interesting in

that he stated that he was convinced that the contempt

charge was not such an open threat to the orderly

16

—_—

17

procedure of the court as to necessitate instant punish-

ment. If the words “you are not only contemptuous but

disorderly and insolent” made during the trial by the

judge are not sufficient to disqualify, then nothing that

Judge Hayes said to Taylor during the trial of this case

comes anywhere close. If Judge Hayes had said nothing

to Taylor during the trial, Taylor would now argue that

he was never warned. Judge Hayes’ remarks at the time

he sentenced petitioner are totally irrelevant to the

claim of bias or hostility.

Let us now review Sacher v. United States, 343 U.S.

1, 96 L.Ed. 717, 72 S.Ct. 451. To quote from the dissent,

“After a nine months trial of leaders of the Communist

Party, a jury brought in a verdict of guilty and was dis-

charged. Immediately, presiding Judge Medina asked

all the defendants’ lawyers to stand up, then read them

a very minor part of a lengthy ‘contempt certificate’ in

which they were alleged to have committed many acts of

contempt at various times during the protracted trial.

Without affording any of them the chance to say a word

before he acted, the presiding judge held all of them

guilty of contempt and sentenced each one to prison.”

During the trial, the court called one lawyer a liar

and another a communist. The court told Sacher that he

was becoming positively insolent. The court felt that he

was being accused of being in connivance with the

United States Attorney, and he understood that he was _

being charged with being biased, prejudiced, corrupt

and everything else.

The claim was made in this court that the contempts

should have been dealt with by another judge. Although

in Sacher counsel repeatedly were warned that their

18

conduct was regarded as contemptuous, no actual con-

tempt citations were made until after the trial.

Therefore, no opportunity to respond or response was

present in Sacher as was present here. The Appendix

reveals that there was constant rangling between

counsel and Judge Medina.

We think certain language contained in Sacher is 00

relevant here that we set it forth in its entirety:

Summary punishment always, and rightly, is

regarded with disfavor and, if imposed in passion or

pettiness, brings discredit to a court as certainly as

the conduct it penalizes. But the very practical

reasons which have led every system of law to vest a

contempt power in one who presides over judicial

proceedings also are the reasons which account for

it being made summary. Our criminal processes are

adversary in nature and rely upon the self-interest

of the litigants and counsel for full and adequate

development of their respective cases. The nature of

the proceedings presupposes, or at least stimulates,

zeal in the opposing lawyers. But their strife can

pervert as well as aid the judicial process unless it is

supervised and controlled by a neutral judge

representing the overriding social interest in impar-

tial justice and with power to curb both adversaries.

The rights and immunities of accused persons

would be exposed to serious and obvious abuse if

the trial bench did not possess and frequently exert

power to curb prejudicial and excessive zeal of

prosecutors. The interests of society in the preserva-

tion of courtroom control by the judges are no more

to be frustrated through unchecked improprieties

by defenders.

In this case counsel repeatedly were warned that

their conduct was regarded as contemptuous. No

19

claim can be made that the judge awaited the close

of the trial to pounce upon them for some offense

*[11)

unnoted at the time *it occurred. If we were to hold

that summary punishment can be imposed only in-

stantly 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. We think it less likely that

unfair condemnation of counsel will occur if the

more deliberate course be permitted.

We are urged that these sentences will have an

intimidating effect on the legal profession, whose

members hereafter will decline to appear in trials

where “defendants are objects of hostility to those

in power,” or will do so under a “cloud of fear”

which “threatens the right of the American people

to be represented fearlessly and vigorously by

counsel.”

That contempt power over counsel, summary or

otherwise, is capable of abuse is certain. Men who

make their way to the bench sometimes exhibit

vanity, irascibility, narrowness, arrogance, and

other weaknesses to which human flesh is heir.

Most judges, however, recognize and respect

courageous, forthright lawyerly conduct. They rare-

ly mistake overzeal or heated words of a man fired

with a desire to win, for the contemptuous conduct

which defies rulings and deserves punishment.

They recognize that our profession necessarily is a

contentious one and they respect the lawyer who

makes a strenuous effort for his client.

The profession knows that no lawyer is at the

mercy of a single federal trial judge. This case

demonstrates

*(13]

“that before punishment takes effect he may have

20

appeal on law and fact to the Court of Appeals.

Petitioners, as yet, have served no part of their

sentences but have been enlarged on bail while their

conduct has been directly reviewed by one Court of

Appeals on their own appeal and considered in-

directly by a differently composed Court of Appeals

on their clients’ appeal. Some of those judges had

trial and appellate experience almost unparalleled

in length and variety. These lawyers have not been

condemned, as they claim, merely by the impulse of

one lone and hostile judge. Their conduct has been

condemned by every judge who has examined this

record under a duty to review the facts. It is to be

doubted whether the profession will be greatly

terrorized by punishment of some of its members

after such extended and detached consideration.

Moreover, if power of contempt excites fear and

terror in the bar, it would hardly be relieved by up-

holding petitioners’ contention that the judge may

proceed against a lawyer at the precise moment of

maximum heat but may not do so if he awaits a

cooler second thought.

We are not unaware or unconcerned that per-

sons identified with unpopular causes may find it

difficult to enlist the counsel of their choice. But we

think it must be ascribed to causes quite apart from

fear of being held in contempt, for we think few

effective lawyers would regard the tactics con-

demned here as either necessary or helpful to a

successful defense. That such clients seem to have

thought these tactics necessary is likely to con-

tribute to the bar’s reluctance to appear for them

rather more than fear of contempt.

But that there may be no misunderstanding, we

make clear that this Court, if its aid be needed, will

unhesitatingly protect counsel in fearless, vigorous

and effective performance of every duty pertaining

21

to the office of the advocate on behalf of any person

whatsoever. But it will

*[14]

*not equate contempt with courage or insults with

independence. It will also protect the processes of

orderly trial, which is the supreme object of the

lawyer’s calling.

Comparing the record here with the record in Sacher

is like comparing Heaven and Hell.

On analysis of all the possibilities, we are convinced

that Judge Hayes acted in the best possible way. Let us

illustrate. If Judges Hayes had done nothing during the

trial and made no citations for contempt but after the

trial had charged Taylor with various contempts, two

things would have occurred. One, the trial would have

become completely out of control and no one would have

secured a fair trial. Second, Judge Hayes would have

been accused of discretely searching the record for in-

fractions which might constitute contempt, and any

claim that the contempt citations were necessary to

maintain an orderly trial would have been weakened.

On the other hand, let’s assume Judge Hayes at the time

he cited Taylor for contempt also imposed sentence.

Taylor would have then contended that he was under

such a psychological handicap that he could not con-

tinue to adequately represent his client, and Judge

Hayes would have been accused of making an in-

temperate judgment because he was still upset about —

the event which inspired the contempt citation.

What Judge Hayes did was cite for contempt during

the trial so that Taylor would know what he had done

and possibly be a deterrent for future contempts. After

22

it was all over and there was time for this, Judge Hayes

could then adequately reflect about the amount of

sentence that should be imposed.

Petitioner would have another judge pass on -these

contempts. Pending in this court, Miscellaneous #73-

5615, is the case of Dominick Codispoti and Hurbert

Langnes, Petitioners v. Commonwealth of Penn-

sylvania, Respondent. Codispoti and Langnes were suc-

cessful in obtaining another judge because they had

been so intemperate with the first one that he was ad-

judged to be incapable of dealing them on a

rational basis. An answer to the petition for a writ of cer-

tiorari and brief for respondent in opposition was filed

by Robert W. Duggan, District Attorney, Allegheny

County, Pennsylvania. On page 14 of the respondent’s

brief above-referred to, Mr. Codispoti rather graphically

articulates his feelings about the second judge. Because

the language is so obscene, we will not repeat it here.

Suffice to say, it makes some of the language used in the

play “Hair’’ sound like the Sermon on the Mount.

Southeastern Promotions Limited v. Conrad, 486 F.2d

894, CA 6, 1973.

Codispoti demonstrates the fallacy that having

another judge hear the contempts is an absolute answer.

Following Codispoti’s course, he can now claim that the

second judge was so vilified by him that he should yet

have a third one and so on. Suppose instead of a judge,

Codispoti had made those remarks to a jury. Would the

jury then be deemed disqualified because it had been so

vilified? No, such a rule will not work. The only answer

is the one that Mr. Justice Jackson gave in the last

paragraph of the opinion in Sacher, supra, when he was

_——

23

speaking for the majority of the court. The right of

appellate review from a contempt judgment now exists

as a matter of right in Kentucky, and this Court has

commendably demonstrated a willingness to hear con-

tempt cases particularly when lawyers are involved.

Will an appellate court be less biased than a brother

trial judge? Of course it will. This is the reason for the

rule in Sacher, and the reason why petitioner’s claim

here is factually, legally and philosophically unsound

and unworkable.

ARGUMENT

Il.

THE PETITIONER WAS NOT DEPRIVED OF DUE

PROCESS OF LAW WHEN THE TRIAL JUDGE

FOUND HIM GUILTY OF CONTEMPT DURING

THE TRIAL, GAVE A REASONABLE

OPPORTUNITY FOR ALLOCUTION AND

WITHHELD PUNISHMENT UNTIL AFTER THE

TRIAL.

The heart of petitioner’s claim in his second argu-

ment is that summary punishment for contempt in itself

is violative of a person’s right of due process of law. He

first argues that the right of allocution does exist as a

matter of right where summary contempt powers are

used, and second, he argues that petitioner was not af-

forded this right.

Petitioner and respondent are in total disagreement

about this. We claim the record shows that he was given

a reasonable right to speak after he was found to be in

contempt. It will be remembered, and we have stated

this before, that every time the Trial Court found

petitioner to be in contempt he was cited in Chambers

24

or not before the jury. Petitioner was advised that the

punishment would be decided later, and no objection

was made by petitioner to this procedure (App. 30).

First, it is our contention that when summary

criminal contempt is imposed, the right to be heard does

not exist. Summary contempt occurs when the contem-

nor commits an act which the judge can see or hear. All

of the contempts in this case fall within that category.

All of the contempts occurred in front of the jury. At no

time did the Trial Judge impose contempt for anything

Taylor did or said in Chambers or any place else. The

Court of Appeals of Kentucky held that there were

numerous other incidents where a contempt filing would

®@ have been justified. The Court of Appeals also found

= that a large part of the trial time was consumed as a

® result of Taylor’s speeches. We have not done so, but if

all the words spoken in this trial were counted, we think

it would be safe to assume that at least one-third of

them came from Taylor. No right, no point, no argu-

= ment, no position was left unstated. A good bit of it ap-

parently was done to impress someone about Taylor’s

@ ability o speak and his command of the English

language. Some people never tire of hearing their own

voice, and this transcript is a classic example of it. In

= contempt #1, which was rescinded, Taylor responded for

eight pages (App. 30-37). Contempt #2 involved a hear-

® ing in Chambers which consumed 16 pages (App. 42-54).

Contempt #3 involved a proceeding in Chambers which

consumed 14 pages (App. 56-69). After the next con-

tempt, the response colloquy took ten pages (App. 69-

79). The next one went eight pages (App. 97-105), and it

included an off the record discussion (App. 100), to

ad

25

which no objection was made. At the next one (App.

107) Taylor asked for an exception which was granted,

reserved his right to speak for the record which the court

granted, and another contempt was imposed in

Chambers (App. 108) where Taylor was given the right

to speak for the record (App. 109). Taylor objected to the

colloquy off the record but offered no bystanders bill.

The next contempt involved a deliberate and direct dis-

obedience of a court order (App. 112), and a response to

this contempt did occur (App. 115-116). The next one

occurred when Taylor continued to ask a question to

which an objection had been sustained (App. 119), and

he was held in contempt at the bench out of the presence

of the jury and no request was made to be heard. In his

final argument to the jury, he responded (App. 119). So,

petitioner’s claim that he was not granted allocution on

the right to speak in mitigation or the right to apologize

or the right to explain is absolutely defied by this

transcript.

As we understand the law of summary criminal con-

tempt, no right to be heard exists. We start with Ex

parte Terry, 128 U.S. 289, 32 L.Ed. 405. During a hear-

ing before a Supreme Court Justice, a Federal Circuit

Judge and a U. S. District Judge, one Sarah Terry

became obstreperous. The Marshal was ordered to

remove her from the courtroorii and when he proceeded

to do so, he was attacked by Mrs. Terry’s husband,

David Terry, who was a lawyer. He was summarily held

in contempt and sentenced to six months in jail. A peti-

tion for a writ of habeas corpus was filed, and the peti-

tion was denied. Terry claimed he was not given the op-

portunity to be heard, and he had no notice of the

26

court’s intention to hold him in contempt. The Supreme

Court in disposing of this contention said:

Blackstone thus states the rule: “If the con-

tempt 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. But in matters

that arise at a distance, and of which the court can-

not have so perfect a knowledge, unless by the con-

fession of the party or the testimony of others, if the

judges upon affidavit see sufficient ground to

suspect that a contempt has been committed, they

either make a rule on the suspected party to show

cause why an attachment should not issue against

him; or, in very flagrant instances of comtempt, the

attachment issues in the first instance, as it also

does if no sufficient cause be shown to discharge, .

and thereupon the court confirms and makes ab-

solute the original rule.” 4 Bl. Com. 286. In Bacon’s

' Abridgment, title, Courts, E, it is laid down that

“Every court of record, as incident to it, may enjoin

the people to keep silence, under a pain, and impose

reasonable fines, not only on such as shall be con-

victed before them of any crime on a formal

prosecution, but also on all such as shall be guilty of

any contempt in the face of the court, as by giving

opprobrious language to the judge, or obstinately

refusing to do their duty as officers of the court, and

immediately order them into custody.” It is utterly

impossible, said Abbott, C. J., in Rex v. Davison, 4

Barn. & Ald. 329, 333, “that the law of the land can

be properly administered if those who are charged

with the duty of administering it have not power to

prevent instances of indecorum from occurring in

their own presence. That power has been vested in

the judges, not for their personal protection, but for

_————

27

that of the public. And a judge will depart from his

bounden duty if he forbears to use it when occasions

arise which call for its exercise.”

To the same effect are the adjudications by the

courts of this country. In State v. Woodfin, 5 Ired.

L. 199, where a person was fined for a contempt

committed in the presence of the court, it was said:

“The power to commit or fine for contempt is essen-

tial to the existence of every court. Business cannot

be conducted unless the court can suppress distur-

bances, and the only means of doing that is by im-

mediate punishment. A breach of the peace in facie

curia is a direct disturbance and a palpable con-

tempt of the authority of the court. It is a case that

does not admit of delay, and the court would be

without dignity that did not punish it promptly and

without trial. Necessarily there can be no inquiry de

novo in another court, as to the truth of the fact.

There is no mode provided for conducting such an

inquiry. There is no prosecution, no plea, nor issue

upon which there can be a trial.” So in Whittem v.

State, 36 Ind. 196: ‘““When the contempt is com-

mitted in the presence of the court, and the court

acts upon view and without trial and inflicts the

punishment, there will be no charge, no plea, no

issue and no trial; and the record that shows the

punishment will also show the offense, and the fact

that the court had found the party guilty of the con-

tempt; on appeal to this court any fact found by the

court below would be taken as true, and every in-

tendment would be made in favor of the action of

the court.” Again, in Ex parte Wright, 65 Ind. 508,

the court, after observing that a direct contempt is

an. open insult in the face of the court to the persons

of the judges while presiding, or a resistance to its

powers in their presence, said: “For a direct con-

tempt the offender may be punished instantly by

28

arrest and fine or imprisonment, upon no further

proof or examination than what is known to the

judges by their senses of seeing, hearing,” etc. 4

Steph. Com. Bk. 6, chap. 15; Tidd, Pr. 479-80; Ex

parte Hamilton, 51 Ala. 68; People v. Turner, 1 Cal

155.

It is true, as counsel suggest, that the power

which the court has of instantly punishing, without

further proof or examination, contempts committed

in its presence, is one that may be abused and may

sometimes be exercised hastily or arbitrarily. But

that is not an argument to disprove either its ex-

istence or the necessity of its being lodged in the

courts. That power cannot be denied them without

inviting or causing such obstruction to the orderly

and impartial administration of justice as would en-

danger the rights and safety of the entire communi-

ty, What was said in Ex parte, Kearney, 20 U.S.7 -

Wheat. 39, 45 [5:391, 393], may be here repeated:

“Wherever power is lodged it may be abused. But

this forms no solid objection against its exercise.

Confidence must be reposed somewhere; and if

there should be an abuse, it will be a public

grievance, for which a remedy may be applied by

the Legislature, and is not to be devised by courts of

justice.”

It results from what has been said that it was

competent for the circuit court, immediately upon

the commission, in its presence, of the contempt

recited in the order of September 3, to proceed upon

its own knowledge of the facts, and punish the

offender, without further proof, and without issue or

trial in any form. It was not bound to hear any ex-

planation of his motives, if it was satisfied, and we

must conclusively 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

7

29

justice demanded immediate action, and that no

explanation could mitigate his offense or disprove

the fact that he had committed such contempt of its

authority and dignity as deserved instant punish-

ment. Whether the facts justified such punishment

was for that court to determine under its solemn

responsibility to do justice, and to maintain its own

dignity and authority. Re Chiles, 89 U.S. 22 Wall.

157, 168 [22:819-823]}.

In U. S. v. Barnett, 376 U.S. 681, 12 L.Ed 2d 23, 84

S.Ct. 984, fifty cases are cited in a footnote where this

court has supported summary disposition of contempts.

In Bloom v. Illinois, 391 U.S. 194, 20 L.Ed. 2d 522, 88

S.Ct. 1477, the following language from Cooke v. United

States, 267 U.S. 517, 537 and 69 L.Ed. 767, 774 is cited:

Due process of law, therefore, in the prosecution

of contempt, *except of that committed in open

court, requires that the accused should be advised

of the charges and have a reasonable opportunity to

meet them by way of defense or explanation. We

think this includes the assistance of counsel, if re-

quested, and the right to call witnesses to give

testimony, relevant either to the issue of complete

exculpation or in extenuation of the offense and in

mitigation of the penalty to be imposed.

(*Emphasis ours).

We have heretofore cited Sacher v. United States,

343 U.S. 1, 96 L.Ed. 717, 72 S.Ct. 451, which involved

citations for contempt and the punishments for con-

tempts at the end of the trial without allocution. The

procedure employed here falls well within Sacher and

within all of the summary contempt cases cited here.

Even though the law does not grant the right to be

30

heard, in most instances the petitioner was granted the

opportunity.

The considerations necessitating summary contempt

power are articulated in Ex parte Terry, supra, and

Sacher y. United States, supra. The argument advanced

by petitioner and amicus does not consider the rights of

other people in orderly judicial and trial process. The

public funds the judicial system through the payment of

taxes. The courts are both a sword and a shield. People

secure rights and have rights protected in courts. As a

Kentucky judge once put it, “Every defendant is en-

titled to at least one tolerably, fair trial.’”” The public,

the prosecutor, the jurors, the lawyers and the courts are

entitled to no less. A license to practice law does not give

an attorney the right to say and do as he pleases in a

courtroom. If there is no machinery for immediate

restraint an amoral lawyer can secure an unjust advan-

tage.

Much of what has been written about contempt

power relates to the necessity of maintaining the dignity

of the court. This, of course, is a relevant consideration,

but the right to a fair and orderly trial is probably the

most important. The public spends a small fortune put-

ting the machinery of justice in action, and no one

= lawyer has a right to subvert this by outrageous conduct

and a stark refusal to adhere to the basic standards of

= trial decorum and good manners. Why should jurors who

are summoned from their home or work involuntarily be

subjected to this? If the court declares a mistrial

because of antics similar to those which have occurred

here, the claim of jeopardy immediately arises. If the

court is not very careful what it does, the right to counsel

_ ————

31

is abrogated. There have been a paucity. of cases in-

volving summary contempt. Most judges use it very

sparingly and are conscious of the great power they

have. In this case, the offense was really two-fold. The

contempts intertwined with an absolute disregard for

the rights of the client. Antics such as Taylor performed

here must have prejudiced his client. At least, the tac-

tics did not help Tinsley. We doubt if Taylor, however,

will ever seek reversal of Tinsley’s conviction or petition

for a writ on the ground that Tinsley was inadequately

represented. The trial of a criminal case is one of the

most serious responsibilities a lawyer can ever have. To

perform the responsibility in the way Taylor performed

it here and allow it to go unnoticed would be one of the

worst indictments the legal profession has ever had.

Rudeness to jurors, rudeness to the court, rudeness to

the other lawyers involved in the case combined with the

contemptuous acts compel the retention of summary

contempt power.

The amicus brief on behalf of the Association of the

Bar of the City of New York says, that, ““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.” The transcript

of this trial proves beyond cavil that such a threat would

have been no deterrent to Taylor because after the first

contempt citation, which was rescinded, he escalated

his contemptuous activities. The fear of disciplinary ac-

32

tion by the Bar Association is obviously no deterrent

because he has-been that route before. Ky. Bar Associa-

tion v. Taylor, Ky., 482 S.W.2d 574. You could not gag

Taylor or bind him because then his client would have

had less of a lawyer than he had. With the exception of a

minute number of those licensed to practice law, no

deterrent is necessary. All but a very few, we are proud

to say, do everything possible to maintain the high stan-

dards of the profession. It is not fear of punishment or

sanction that prevents the average lawyer from becom-

ing obstreperous and contemptuous but it is an affir-

mative regard for the rights of others and the high

privileges lawyers have. We think the statement that

lawyers behave themselves because of fear is one of the

most derrogatory things that we have ever seen written

about the profession. Anyone who would make such a

statement has seriously misjudged the caliber of people

who comprise the bar. Judges do not have to summarily.

punish lawyers other than those of Taylor's ilk. If, on a

bad day, he does incorrectly, the appellate courts have

been quick to reverse, e.g., Miller v. Stevenson, Ky., 474

S.W.2d 372 (1971). We note that the amicus curiae brief

on behalf of the Association of the Bar of the City of New

York is signed by two law teachers. Suppose one day in

class a student with complete disregard of the rights

other students decided he was going to disrupt the class.

Would these two teachers have the student summarily

ejected or would they benignly threaten him with later

administrative sanctions? Would these two teachers

agree that a dissident student should have a right to a

rial by-jury of other students? We think not, and while

his may be an absurd analogy, it is no less absurd than

he point claimed.

gq

__ —

33

So, to sum this portion of the argument once again,

we say first procedural due process was granted in-

cluding the right to be heard, and second, the right to be

heard was granted even though it was not required. The

power of summary contempt must exist because of

petitioner and those like him. Petitioner was told of and

knew the exact offense he had committed, and this

proposition is so clear that this court would not grant

certiorari on whether Taylor’s actions were contemp-

tuous. “

ARGUMENT

Ill.

AS PETITIONER’S SENTENCE WAS ACTUALLY

SIX MONTHS, HE WAS NEITHER CHARGED

WITH NOR CONVICTED OF A SERIOUS

OFFENSE WITHIN THE MEANING OF THE

SIXTH AMENDMENT’S GUARANTEE OF TRIAL

BY JURY.

The Court of-Appeals of Kentucky (App. 18-20) has

so clearly and succinctly disposed of petitioner’s argu-

ment relative to his right to a trial by jury that we set it

forth in full.

Taylor next claims that even if the court had the

authority to summarily sentence him for contempt,

a sentence of three and one-half years without the

intervention of a jury violates the 6th and 14

Amendments of the Constitution of the United

States. Taylor is rather loose in his designation of

the sentence imposed which he has tended all

through this appeal to designate as three and one-

half.years. The truth of the matter is, as shown by

the record, that Taylor was sentencd on eight

separate charges of contempt, six of said sentences

“a

34

being for six months, one for ninety days, and other

(sic) for sixty days..As we total all of them we, of

course, come up with three years and five months.

However, as far as this court is concerned we will

treat them as separate sentences and not as a totali-

ty and shall so discuss them.

The Supreme Court has held upon a number of

occasions that criminal contempt occupies the

same position as any other criminal offense on the

question of whether or not the contemnor is con-

stitutionally entitled to a jury trial. If the offense

was “petty,” with the sentence being not more than

‘six months, a jury trial was not required while if the

offense was “serious,” with the sentence being in

excess of six months, the contemnor was entitled to

a jury trial.

In Bloom v. Illinois, 391 U. S. 194, 88 S.Ct. 1477,

20 L.Ed. 2d 522 (1968), the court held that in con-

tempt proceedings where there was no maximum

penalty, as we now have held, the seriousness of the

offense for the purpose of determining whether or

not a jury trial was constitutionally required is

determined by the penalty actually imposed.

In Frank v. United States, 395 U. S. 147, 89

S.Ct. 1503, 23 L.Ed. 2d 162 (1969), the court held

that sentences for criminal contempt up to six

months may be constitutionally imposed without a

jury trial, while in Cheff v. Schnackenberg, 384 U.S

373, 86 S.Ct. 1523, 16 L.Ed. 2d 629 (1966), the court

ruled that sentences for criminal contempt ex-

ceeding six months may not be imposed by federal

courts absent a jury trial or a waiver thereof.

As these rules are based upon the consitutional

right of a party to a trial by jury, they would apply

equally to proceedings in a state court. It might be

well to add at this point that there was not before

the court in any of the cases cited the question of

35

what is termed “aggregate sentences” for the pur-

pose of determining the constitutional right to a

trial by jury. No sentence meted out upon the

charges against Taylor exceeded six months.

Therefore, in the light of the cases above cited,

Taylor was not constitutionally entitled to a trial by

jury, and the sentences were not violative of any of

his constitutional rights.

In United States v. Seale, U.S. Court of

Appeals, 7th Circuit, 461 F.2d 345 (1972), the court

reaffirmed the rule that the 6th Amendment right

to trial by jury applied to serious criminal con-

tempts and that in determining whether or not such

contempt was “serious” the courts were required to

look at the penalty actually imposed. The court

then held that for the purpose of determining

whether or not a contemnor was entitled to a trial

by jury it would be necessary to look to the

aggregate of the sentences and not to the sentences

separately. In other words, the rule in Seale is such

that we must total the penalty imposed by each

sentence for the purpose of determining whether or

not a contemnor is constitutionally entitled to a

trial by jury.

Taylor claims that the rule in Seale is con-

trolling in determining whether or not his criminal

contempt was serious and the sentence thus invalid

because he was not granted a jury trial. The trial

court on its original charges of criminal contempt

ordered that the sentences be served consecutively.

This court permitted the trial court to later file a

corrected judgment reducing the number of acts of

criminal contempt charges and amending the

sentences imposed.

The corrected judgment does not direct that the

sentences, as amended, be served consecutively;

therefore, they must be served concurrently. Thus,

36

the totality of the sentence actually imposed is a jail

sentence of six months.

Seale does not apply here, for no matter how we

aggregate the sentences we always come up with a

total penalty of six months in jail. In Bloom vy.

Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed 2d 522

(1968), the guidelines established by the Supreme

Court predicate the constitutional right to a jury

trial upon a determination of the penalty actually

imposed.

The penalty actually imposed on Daniel Taylor

is six months in jail. He was not entitled to a jury

trial. Frank v. United States, 395 U.S. 147, 89 S.Ct.

1503, 23 L.Ed 2d 162 (1969).

We hold that the sentences imposed on Daniel

T. Taylor, II], must be served concurrently;

viz.—one six month jail sentence, and except for

this holding the judgment of the lower court ad-

judging him in contempt of court and fixing the

penalty for each act of contempt is hereby affirmed.

We are not certain the rule in Seale is the best one.

See for example: Commonwealth v. Snyder, Pa., 275

A.2d 312.

Several interesting questions arise from petitioner's

and amicus’ contentions in this portion of the argument.

Although they profess to be speaking for the profession

as a whole, and admirably so, it is obvious that they

have not considered the ramifications of some of their

claims. For example, they claim that at any time a

lawyer is sent to jail for criminal contempt the offense

should be considered a “serious one” thus entitling a

lawyer the right of a trial by jury. Bloom v. Illinois,

supra.

Rule 3.320 of the Court of Appeals of Kentucky

provides:

_—e

37

3.320—Procedure Where An Attorney Has

Been Convicted of a Misdemeanor or a

Felony—When any member of the Association has

been convicted of a serious misdemeanor or of a

felony a copy of the judgment shall be filed with the

Court by the President or Vice-President. If the

offense is a felony or if it is a misdemeanor which

the Court finds to involve dishonesty or stealing

within the concept of Cotton v. Commonwealth,

(Ky.) 454 S.W.2nd 698, the member shall be

suspended ipso facto. If no appeal is taken the

Court shall enter an order of disbarment. In the

event an appeal is taken from such conviction, the

final question of discipline shall be deferred until

such time as the Court finally determines the

matter.

If such appeal results in affirmance of the con-

viction, then an order of disbarment shall issue

forthwith. If the appeal results in reversal, without

retrial, then procedures shall be concluded and the

suspension shall terminate. If such reversal involves

retrial, the suspension shall cease and the matter

shall be held in abeyance until such time as the

retrial is concluded. If reconvicted, the foregoing

procedures shall be as upon the first conviction as

hereinabove set out. If not convicted upon such

retrial, all proceedings shall cease.

See Ky. Bar Association v. Martin, Ky., 490 S.W.2d 759.

There, Martin, a lawyer, plead guilty to the use of a

stolen registration plate of his automobile and an

attempt to commit a felony—defrauding of an innkeeper

by known inability to pay his bill. Martin received a six-

months probated sentence on a plea of guilty after ser-

ving 17 days in jail because he was unable to obtain a

$1,500 bond as bail.

38

Martin claimed that he did not know who put the

stolen license plate on his car and that he told the in-

nkeeper that the check he gave would not be good until

he returned to Louisville. For these offenses, Martin was

permanently disbarred.

The first sentence in RCA 3.320 speaks of a serious

misdemeanor. Thereafter, the term misdemeanor is

qualified by the words involving a dishonest act. In Ken-

tucky, contempts of court are misdemeanors. Young v.

Knight, Ky., 329 S.W.2d 195, 77 A.L.R.2d 994.

The point of all this is that if petitioner’s claim

succeeds and then a lawyer receives 24 hours in jail for

contempt, he may then automatically be subjected to

severe disciplinary measures because of the rule as

above-stated. Every attorney convicted of a criminal

contempt would thereafter be deemed to have been con-

victed of a serious misdemeanor. Compare Ky. State

Bar Association v. McAfee, Ky., 301 S.W.2d 899, where

the Court of Appeals of Kentucky held that the convic-

tion of a lawyer in Federal Court of wilfully and

knowingly failing to make income tax returns and who

was sentenced to nine months in prison and fined, did

not involve such moral turpitude as to be grounds for

disbarment. Compare Ky. State Bar Association v.

Brown, Ky., 302 S.W.2d 834, Income Tax Evasions, and

Underwood v. Commonwealth, 38 K.L.R. 32, 105 S.W.

151. In the Underwood case, the county attorney had

been convicted three times for bootlegging and the court

felt this justified disbarment.

There may be occasions where repeated convictions

for contempt may well warrant disciplinary action by an

attorney’s licensing authority. Ky. Bar Association v.

Taylor, Ky., 482 S.W.2d 574. The distinction between

proceedings for contempt and those for disbarment is

well stated in Legal Ethics, Henry S. Drinker, 1953

Columbia University Press, New York, p. 39, where an

excerpt from People ex rel. v. Green, 7 Colo. 237 (1884) is

cited.

The purpose of proceedings for contempt and

those for disbarment, and the powers and duties of

courts in connection therewith, must not be con-

fused. The former may be termed a police regula-

tion or power, for the protection of the court from

present direct interference and annoyance in a trial

or proceeding taking place before it; the later is in-

tended to protect, generally, the administration of

justice, to save the legal profession from degrada-

tion by unworthy membership, and to guard the in-

terest of litigants’ against injury from those in-

trusted with their legal business. The power to act

in connection with the former is lodged in the court

before or against whom the offense is committed;

authority to proceed in the latter is possessed ex-

clusively by the tribunal authorized to grant

licenses admitting to the profession; the former is

punished by fine or imprisonment, and in many in-

stances the proceeding is summary and largely ex

parte; the sole penalty in connection with the latter

is a prohibition from practicing in courts of record,

and this judgment can only be entered upon notice

of the charge preferred and a full hearing in defense;

ample time for preparation being given and all

legitimate testimony being allowed and considered.

A contempt may consitute ground for disbarment,

but it by no means follows that the cause for disbar-

ment must, in all cases, constitute a contempt.

————

40

Hopefully, we will never be held in contempt by any

court. We hope the same for all our brothers. If we are,

however, we want to have the right to exercise a judg-

ment as to whether we want to do our 30 hours in jail

without being confronted with the necessity of taking an

appeal or litigating with our licensing authority as to

whether or not we can keep our license.

A reasonable delineation has been made by this

Court as to what constitutes really a serious offense. If

the penalty does not exceed six months, then it is not an

offense which requires a jury and is not serious. What is

serious and not serious must be determined by this

Court and not by anyone else. What may be serious to X

might not be to Y and the converse might be true. Con-

viction of public drunkeness might be considered serious

by a preacher but not by the president of a distillery.

One standard of seriousness must exist and it must be

set by this Court, and this Court has done as stated.

The second interesting question which arises from all

of this is the right of a court to modify its judgment. The

right of an appellate court to modify a judgment is also

involved. What should be an appellate court’s right to

deal with contempt judgments?

As we argue that if the summary contempt power is

abused protection is afforded by the right of appeal and

review by appellate courts, then we must accordingly

argue that the appellate courts must have the power to

modify such sentences. We are aware of the raging con-

troversy surrounding appellate courts’ rights to modify,

or perhaps to correct would be a better term, sentences

imposed by the trial court. Appellate courts in Ken-

tucky have freely availed themselves of this prerogative

—

41

in disciplinary procedures when reviewing recommen-

dations from the Bar Association authorities. Compare

Ky. Bar Association v. Taylor, supra, and In re Viniard,

Ky., 406 S.W.2d 736.

That an appellate court can reduce a sentence which

appears unduly harsh in our opinion is no longer open to

argument. See U. S. v. McKinney, 466 F.2d 1403, CA 6,

1972. There the Court of Appeals reduced a draft

dodger’s sentence from five to one year. This Court did it

in Bartone v. United States, 375 U.S. 52, 11 L.Ed. 2d 11,

84 S.Ct. 21, when it reversed the 5th Circuit judgment

denying correction of an enlarged sentence. See also

Bozza v. United States, 330 U.S. 160, 91 L.Ed. 818. In .

affirming the district judge’s correction of a sentence,

the court said, “The sentence, as corrected, imposes a

valid punishment for an offense instead of an invalid

punishment for that offense.” Since this Court’s judg-

ment in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,

33 L.Ed. 2d 346, abolishing the death penalty, state

appellate courts all over the country have modified and

corrected judgments calling for the death penalty

without the necessity of resentencing. See Caine v.

Commonwea Ky., 491 S.W.2d 824.

Suppose ice judge is hearing a misdemeanor

case. The judge is under the impression that he can im-

pose a 30-day jail sentence when in fact he can only by

law impose a 10-day jail sentence. Should he not have

the power to correct and modify the erroneous sentence?

Suppose the maximum was five months, but the police

judge thought it was seven months and imposed seven

months. After being made aware of his mistake, he

reduced it to five months. Would the defendant

ao,

42

automatically be entitled to a trial by jury because the

police judge had originally sentenced him to seven

months instead of five months? The answer is obviously

no, and at any rate, we believe that the judgment of the

Court of Appeals of Kentucky in this respect is the law

of the case. (App. 20). See also In re Channels, 131 Ky.

737, 100 S.W. 214. Compare Jackson v. Commonwealth,

187 Ky. 760, 220 S.W. 1045, 9 A.L.R. 955, and Edge v.

Commonwealth, 139 Ky. 252, 129 S.W. 591. An ex-

cessive sentence is void only as to the excess. Dimenza v.

Johnson, 131 F.2d 47, CA 9, 1942.

RCr 10.10, which is Kentucky’s Rules of Criminal

Procedure, provides, ‘‘Clerical mistakes in judgments,

orders or other parts of the record and errors arising

therein, arising from oversight or omission may be cor-

rected by the court at any time on its own initiative or |

on the motion of any party and after such notice, if any,

as the court orders. During the pendency of an appeal,

such mistakes may be so corrected before the appeal is

docketed in the appellate court, and thereafter while the

appeal is pending may be so corrected with leave of the

appellate court.” It is obvious that both the respondent

and the Court of Appeals of Kentucky complied with

this rule in correcting the judgment.

The corrected and modified judgment eliminated the

requirement that the sentences be served consecutively.

. The Court of Appeals of Kentucky construed this to

mean that they would be served concurrently and,

therefore, came to the conclusion that six months was

all that Taylor would be required to serve. It seems to us

that if the judgment is silent on the matter and there is

no rule requiring the contrary and absent the original

statement that they were to be served consecutively, the

43

only logical conclusion the court could reach was that

they are to be served concurrently. RCr 11.04 requires

the judgment to state whether the sentences are to be

served consecutively or concurrently. Absent the word

consecutively and absent the word concurrently, the

presumption would seem to be that the sentences are to

be served concurrently. This is what the Kentucky court

held, and we contend this is now the law of the case and

no claim has been made in this court that the judgment

is void because of the omission.

CONCLUSION

We think the most critical question in this case

relates to the remarks Judge Hayes made at the time he

imposed the sentences on Taylor. We have discussed

this in some detail in Argument I. The claim raises the

question of whether or not the statements made con-

clusively show a predisposition of hostility by respon-

dent toward the petitioner. If we are correct, as we

believe we are, in our premise that Taylor was indeed

given the right to be heard and was heard on the con-

tempts, then no further hearing was required before

sentence was imposed. The explanation and responses

given by Taylor were such as to include all facts argued

by amicus which would be advanced in defense or

mitigation. The castigation of Taylor by Judge Hayes

has no relevance in our opinion to whether or not the

offenses were serious ones because that determination

must ultimately be made by the guidelines established

by this court. The standard is, of course, “the sentence

actually to be served.” The sentence here ultimately to

be served is six months. Therefore, irrespective of how

440

petitioner or respondent viewed the seriousness of the

offenses, this court has already determined that it is not

a serious crime. Bloom v. Illinois, supra.

_ We compare the remarks of Judge Hayes and those

made by District Judge Irving Kaufman at the time he

sentenced Julius and Ethel Rosenberg to death. (The

Implosion Conspiracy, Louis Nizer, Doubleday & Com-

pany, Inc., Garden City, New York 1973, pp. 356-357).

I consider your crime worse than murder. Plain

deliberate contemplated murder is dwarfed in

magnitude by comparison with the crime you have

committed. In committing the act of murder, the

criminal kills only his victim. The immediate fami-

ly is brought to grief and when justice is meted out

the chapter is closed. But in your case, I believe

your conduct in putting into the hands of the

Russians the A-bomb years before our best scien-

tists predicted Russia would perfect the bomb has

already caused, in my opinion, the Communist

aggression in Korea, with the resultant casualties

exceeding 50,000 and who knows but that millions

more of innocent people may pay the price of your

treason. Indeed, by your betrayal you undoubtedly

have altered the course of history to the disadvan-

tage of our country.

The evidence indicated quite clearly that Julius

Rosenberg was the prime mover in this conspiracy.

However, let no mistake be made about the role

which his wife, Ethel Rosenberg, played in this con-

spiracy. Instead of deterring him from pursuing his

ignoble cause, she encouraged and assisted the

cause. She was a mature woman—almost three

years older than her husband and almost seven

years older than her younger brother. She was a

full-fledged partner in this crime.

_

45

Love for their cause dominated their lives—it

was even greater than their love for their children.

What I am about to say is not easy for me. I have

deliberated for hours, days and nights. I have

carefully weighed the evidence. Every nerve, every

fiber of my body has been taxed. I am convinced

beyond any doubt of your guilt. I have searched the

records—I have searched my conscience—to find

some reason for mercy—for it is only human to be

merciful and it is natural to try to spare lives. I am

convinced, however, that I would violate the solemn

and sacred trust that the people of this land have

placed in my hands were I to show leniency to the

defendants Rosenberg.

The sentence of the Court upon Julius and Ethel

Rosenberg is, for the crime for which you have been

convicted you are hereby sentenced to the punish-

ment of death, and it is ordered upon some day

within the week beginning with Monday, May 21st,

you shall be executed according to law.

Judge Kaufman’s feeling obviously came from what

he heard and saw during the trial. He speculated,

however, when he said, “Who kriows but that millions

more of innocent people may pay the price of your

treason.”

Mr. Nizer further very appropriately observed on

page 464:

In the past, doughty lawyers, fighting great

causes, have used “open warfare” against the

system. Some have denounced the prejudice of the

presiding judge or the southern jury sitting in the

case. At times these orations stirred the blood with

their eloquence and sincerity. But what happened

to the client on whose behalf they were made? What

46

good did it do him that the lawyer's speech was

deemed grandiloquent enough to be included in

to rudeness from his adversary. The only considera-

tion if he strikes back is whether it will advantage

his client. Playing to the gallery or to public opi-

nion, which in this case was international, could

possible be justified if it was the best way to win.

This was not the case. Finerty’s bitter comments

published in the American and foreign press might

gratify the deep feelings of many readers, but it was

not in their power to sustain Judge Douglas’ stay.

He had infuriated the judges before him and given

‘an extra dimension to the unsavory position of the

Rosenbergs.

These last quoted two paragraphs sum our feeling

about this case more than anything else we have been

able to write or argue.

Thus, it is our contention that Judge Hayes could

and did impartially pass judgment on Taylor, that

Taylor was given a reasonable opportunity for allocution

and as the actual sentence to be served is actually six

months, Taylor was neither charged nor convicted of a

serious offense within the meaning of the Sixth Amend-

ment to the Constitution of the United States. If there

was ever any doubt about the necessity of a trial judge

retaining the power of summary contempt, the record in

this case demonstrates the compelling necessity for this

power to be retained.

47

We disagree that this is a case of great constitutional

dimension and import as petitioner and amicus argue.

We disagree that any holding made by this court will

ever be of much benefit to bench or bar because of the

outrageous facts that are present here. Taylor does not

come into this case with clean hands. He stands con-

victed of eight contempts and this court refused to hear

Taylor’s petition on whether or not his actions were con-

temptuous. We do not believe any two contempt cases

can ever be alike. We can envision cases where the con-

frontation is totally the lawyer's fault or totally the

court’s fault or both. Every contempt case must be con-

sidered on its particular facts. There can be no general

rule in a contempt case. The trial judge must be

presumed to be in the best position to deal with con-

tempt both from the point of view of retaining order and

providing a deterrent. If he is wrong, he can be reviewed.

If the present rules of summary contempt are destroyed,

it will subject a trial judge to “open season” by those

who claim they have regard for the rights of others but in

truth have no feeling for anyone’s rights except their

own.

Petitioner argues that judges should be made of

strong and stern stuff and not be overprotective of their

sensitivities. Firm, fair and evenhanded justice,

petitioner argues, is all that is necessary to maintain

order in a trial. Ordinarily, this is true, but this is not

an ordinary case. Eliminating all the impassioned argu-

ment, the breast beating, the cries of unfair treatment

and hostility, the facts here involve a lawyer who was

deliberately contemptuous, whose actions were

calculated to disrupt and destroy and to prevent a fair

—

and orderly trial. Unfortunately for petitioner, he was

confronted with a trial judge who was equally deter-

mined that this should not happen.

Unfortunately for Taylor, when he commenced his

' collision course aboard the vessel Disruption, he failed

to observe Judge Hayes at the helm of the Leviathan.

Taylor is the deliberate begetter of his own predicament.

Taylor has been dealt with fairly and firmly by the

courts below. If this court does any damage to the

holding below, it will be an invitation for a certain few to

escalate their chaos-causing conduct to the extreme

detriment and harm of those whom they claim they are

trying to serve. Our courts in modern times have been

zealous in their efforts to protect the poor, the un-

popular, the downtrodden, those who speak for a minori-

ty few, those who are oppressed, and those who have

been unfairly treated. None of this, however, has any

relevance to a lawyer who engages in unconscionable

conduct. The point of all this is that lawyers can be

zealous and vigorously protect the rights of their clients

without being contemptuous and without disrupting the

proceedings. The annals of history are replete with in- ,

stances where lawyers have defended unpopular cases

and espoused unpopular causes with dignity and most

important, effectively. The famous Henry Clay, a slave

owner, once successfully defended his firey cousin,

Cassius Clay, one of the nation’s leading abolitionists at

the time, in front of a proslavery jury and in a proslavery

part of Kentucky. So, the argument that conduct like

Taylor’s is necessary and the elimination of summary

contempt power is vital to perpetuate it has no founda-

tion in fact or fiction. It has been our observation that

48

lawyers who engage in tactics such as Taylor performed

here usually secure the maximum punishnient from

juries for their clients.

The jury system for determining the truth of a con-

troverted fact may not be perfect, but with all the

procedural safeguards relative to evidence and trial

practice, it has proved to be the most workable and en-

during under our system of Anglo-American

jurisprudence. There are those who would destroy it, but

oddly enough, they have failed to advance a better

system.

In every contest there must be some final arbiter or

umpire. This is as true in the game of life as in the game

of law. This is what happened here.

WHEREFORE, the respondent respectfully

demands: :

(1) That the judgment of the Court of Appeals of

Kentucky be affirmed.

(2) That this court grant all other and proper relief

in the premises both legal and equitable as the cir-

cumstances warrant.

49

HENRY A. TRIPLETT

HOGAN, TAYLOR, DENZER

& BENNETT

231 S. Fifth Street, Third Floor

Louisville, Kentucky 40202

Attorneys for Respondent