Petitioners Brief — Codispoti v. Pennsylvania

R \\__JN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 73-5615

DOMINIC CODISPOTI and

HERBERT LANGNES,

Petitioners,

v. a

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE COMMONWEALTH OF PENNSYLVANIA

BRIEF FOR PETITIONERS

GEORGE H. ROSS

Public Defender

JOHN J. DEAN

Chief, Appellate Division

Office of the'Public Defender of

Allegheny County, Pennsylvania

Second Floor, B.F. Jones Annex

311 Ross Street

Pittsburgh, Pennsylvania 15219

Counsel for Petitioners

ed

Washington, 0.C. @ CLB PUBLISHERS’ © LAW PRINTING CO. © (202) 393-0625

(i)

TABLE OF CONTENTS

Page

OPINION BELOW ............-- cece eeeeeeeees 1

JURISDICTION .........0- 0 cece ce ceeecueuees 1

CONSTITUTIONAL PROVISIONS AND |

STATUTES INVOLVED ..............000e00% 2

QUESTIONS PRESENTED ............-0-00005- . 2

STATEMENT .........0.0-ececececececececes 3

ARGUMENT:

I. The Defendant Is Entitled to a Jury Trial When

He Receives Cumulative Sentences for Con-

tempt of Court Imposed at the End of the Trial

and the Sentences Effectively Imprison the

Defendant for a Period in Excess of Six Months ..... 6

A. The Traditional Policy Reasons for Denying

a Jury Trial for “Petty Offenses” Do Not

Apply Where There Is a Single Delayed Trial

Covering Several Individual Contempts ........ 8

B. The Potential for Judicial Abuse Requires

the Imposition of a Jury Between the Judge

ee ee eee ee ee 9

C. There Are Several Strong Policy Reasons for

Affording.a Jury Trial in a Case Such as

2) re ee ee eee Se ee ee ee 11

Il. The Strong Possibility of a Substantive Term of

Imprisonment Requires That an Accused Must

Be Afforded the Right to a Jury Trial in a

Contempt of Court Case ..........0 202 ee eee 13

CONCLUSION 0... ccc ccc ccc ccc ccc ec eee cenes 15

‘TABLE OF AUTHORITIES

Cases: .

Anderson v. Dunn, 6 Wheat. 204,231 ............... 12

Baldwin v. New York, 399 U.S. 72 .............2-- 12, 14

Page’

Bloom v. Illinois, 391 U.S.194 ............-22005, 6-7

Cheff v. Schnackenberg, 384 U.S. 373 .............-.. 7-

Farese v. United States, 209 F.2d 312, 215 (ist Cir.

) eee ee ee 13

Frank v. United States, 395 US.147 ............-... 7

In Re: Dobbs, 156 U.S. 565 (1895) .............-4.. 9

In Re: Sacher v. United States, 343 U.S. 1(1925) ....... 9

United States v. Seale, 461 F.2d 345 (7th CCA,

SGTA) kb bos be wer ce eeeee es exe ees 6, 10, 13

Statutes:

SOU ils 1 bas SS a os 6085 86 eee bbe eek eee 2,7

Pa. Statates 17; S206) nonce cade es caveisess es 2, 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 73-5615

DOMINIC CODISPOTI and

HERBERT LANGNES,

7 Petitioners,

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE COMMONWEALTH OF PENNSYLVANIA

BRIEF FOR PETITIONERS

OPINION BELOW

The Opinion of the Supreme Court of the Common-

wealth of Pennsylvania is reported at 453 Pa. 619.

JURISDICTION

The Judgment of the Supreme Court of the Common-

wealth of Pennsylvania was entered on July 2, 1973. The

Petition for a Writ of Certiorari was filed on October 2,

1973 and was granted on December 3, 1973. Jurisdiction

in this Court is conferred by 28 U.S.C. § 1257(3). 7

a

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitution of the United States:

Article III, §2, “The trial of all crimes, except in

cases of impeachment shall be by jury .. .”

Amendment VI — “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and just trial by

an impartial jury of the State and district wherein the

crime shall have been committed, and to be informed of

the nature and cause of the accusation * * *.”

2

Statutes of the United States

Title 18, U.S.C. §1, “Notwithstanding any Act of

Congress to the contrary:

1. Any offense punishable by death or imprisonment

to a term exceeding one year is a felony.

2. Any misdemeanor the penalty for which does not

exceed imprisonment for a period of six months “‘is a

petty offense and does not therefore require a jury trial.”

Statutes of the Commonwealth of Pennsylvania

Pa. Stat. Ann. 17, §2042. “The punishment of im-

prisonment for contempt as aforesaid shall extend only

to such contempts as shall be committed in open court,

and all other contempts shall be punished by fine only.”

QUESTIONS PRESENTED

I. Is the defendant entitled to a jury trial when he

receives cumulative sentences for contempt of court

imposed at the end of the trial and the sentences

effectively imprison the defendant for a period in excess

of six ‘months?

II. Does the strong possibility of a substantial term of

imprisonment require that an ones must be afforded

the right to a jury trial in a contempt of court case?

3

STATEMENT OF THE CASE

The Petitioners, Dominic Codispoti and Herbert

Langnes, together with a co-defendant, Richard O.

Mayberry, were convicted of criminal contempt in the

Court of Oyer and Terminer of Allegheny County,

Pennsylvania. The alleged contempt occurred during a six

week jury trial on charges of Prison Breach and Holding

Hostages in a penal institution. During the course of the

trial, Petitioner, Codispoti, accused the judge of trying to

protect the prison authorities, railroading the Defendant

into life imprisonment, being tyrannical and corrupt. He

called the judge ‘“‘crazy” to believe the co-defendant,

Mayberry was sane after a courtroom outburst. He

alleged a conspiracy between the judge and the prison

authority and in general he was charged with engaging in

boisterous and insolent conduct. (App. 33) Petitioner,

Langnes, also accused the court of conspiracy, of rail-

roading him, of acting like a convict and he told the court

to “go to hell” and offered to shake hands with the judge

when they both met in hell. (App. 30)

At the termination of the trial, Judge Albert Fiok

summarily sentenced the Defendants from a minimum of

one to a maximum of two years consecutive on each of

the counts of contempt. Petitioner Codispoti received a

total sentence of seven to fourteen years, and Petitioner,

Langnes, received a total sentence of six to twelve years.

Mr. Mayberry, the co-defendant, received eleven to

twenty-two years.

The Defendants all appealed their contempt sentences

to the Pennsylvania Supreme Court, which in November,

1968, affirmed their conviction with several dissents

based upon the theory of cruel and unusual punishment

and the right to a jury trial. (App. 8)

Co-defendant, Mayberry’s pro se petition to this Court

te a Writ of Certiorari was granted and in January, 1971,

4

this Court vacated the judgment and remanded the case

for further proceedings. (App. 17)

On December 6, 1971, the original state trial court

- Judge, Albert A. Fiok, issued a contempt citation against

the Petitioners and Richard Mayberry, which was to be

served on them by registered mail. On December 16,

1971, Petitioner, Langnes, came on for trial and on

December 17, 1971, Petitioner, Codispoti came on for

- trial. Both requested a jury trial and both were denied by

the hearing judge, the Honorable Robert Van der Voort.

The trial atmosphere was a somewhat tense one. Mr.

Codispoti requested that he be able to have counsel of his

own choice to re nt him. He stated that on two prior

occasions he had written to Judge Fiok requesting an

indication of the ition of the charges, but the judge

did not respond to his letter. He had contacted an

attorney who had agreed to represent him, but Codispoti

only knew one day before the trial that his case was

scheduled. The Court then noted that his chosen attorney

was not present in the courtroom, and ordered appointed

counsel to proceed, even though appointed counsel was

unwilling. (App. 43) Petitioner, Codispoti’s request fora

jury trial was denied as follows:

The Court: I regard this issue, Mr. Codispoti, as an

issue between the Court, not any particular Judge,

but between the Court and you, and I think that the

record should speak for the Court, and you can

speak for yourself, and I’m going to refuse the

motion for a jury trial. (App. 45)

A motion was made for production of the defense

witnesses. The court again denied the motion in sub-

stantially similar language.

The Court: I am going to refuse your motion to

subpoena witnesses for the reasons I have told you. I

think this is an issue between the Court and you,

—

5

and the record will speak for the Court, and you and

counsel can speak for yourself. (App. 47)

The Petitioner Codispoti’s frustration at, the conduct

of contempt proceeding can be sensed by the outburst as

follows:

Mr. Codispoti: There is one thing I want to make

clear. I came in this courtroom trying to be

respectful. Right?

The Court: You have been.

Mr. Codispoti: You know I got ninety years. Right?

In fact this is immaterial—

The Court: Excuse me. I do not know that you have

ninety years.

Mr. Codispoti: I got fifty years right on that one

charge.

The Court: No, I don’t. Now that you tell me I

know.

Mr. Codispoti: I did not come to this courtroom

trying to create a scene or a circus atmosphere. As

long as you afford me the right under due process of

law I will conduct myself as a gentleman. But if I

think you are going to railroad me, mother fucker,

you can get that straight jacket again. You under-

stand? Now, you can just run me out of this

courtroom, get your blackjack, get your straight

jacket, but I don’t give a fuck. I am doing ninety

years. Now, if you want to make a circus out of this,

Chicago Eight, go ahead baby, but if you want to go

by the law I will go by law. Make it easy on yourself

because I don’t give a fuck one way or the other.

Now, you do what you want to do. (App. 47)

A similar situation existed with reference to Petitioner

Langnes in his trial. (App. 75, 76, 89)

The trial judge found Codispoti guilty as charged and

imposed a sentence of three months on one contempt,

6

six month sentences on five contempts and a year

sentence on one contempt. (App. 70) After about a

month, the trial judge revised his “trough draft”’ sentence

to six months instead of the year for the last contempt

charge. (App. 73) All sentences were made to run

consecutive, so that Petitioner, Codispoti has an effective

total of three years, two months.

A similar situation existed with Petitioner, Langnes,

who was found guilty of all six charges, and sentenced to

five terms of six months each and one term of two

months so that Langnes has an effective sentence of two

years, eight months. (App. 90)

An Appeal was filed in the Pennsylvania Supreme

Court and by an Order dated July 2, 1973, the

Pennsylvania Supreme Court affirmed the lower court's

judgment of sentence. Justice Manderino filed a lone

dissenting Opinion on the basis of United States v. Seale.

This Court granted Certiorari on December 3, 1973.

ARGUMENT

I.

WHEN PETITIONERS RECEIVE CUMULATIVE SEN-

TENCES FOR CONTEMPT OF COURT IMPOSED AT THE

END OF A TRIAL THE TOTAL EFFECTIVE SENTENCE

RECEIVED MUST BE USED RATHER THAN THE

INDIVIDUAL SENTENCES IN ORDER TO DETERMINE

THE SERIOUSNESS OF THE CONTEMPT AND THEREBY

DETERMINE WHETHER THE ACCUSED SHOULD BE

AFFORDED THE RIGHT TO A JURY TRIAL.

In Bloom y. lilinois, 391 U.S. 194, this Court squarely

faced the issue whether all criminal contempts could be

tried without affording the accused a right to a jury trial

ruling that serious contempts required the right to a jury

trial. The basis of the decision was two-fold. First, a

7

criminal contempt is indistinguishable from an ordinary

criminal conviction and, therefore, deserves the same jury

trial protection. Secondly, and more compellingly, a jury

trial provides “‘protection against the arbitrary exercise of

official power’’, 391 U.S. at 202. .

Admittedly, a right to a jury trial exists only in serious

offenses, and usually in order to determine the serious-

ness of the offense, the Court uses as a relevant indication

the severity of the penalty authorized for the commission

of the crime, Frank v. United States, 395 U.S. 147.

However, where no statutorily mandated penalty is

prescribed, then the Court normally looks to the penalty

actually imposed to determine whether the offense is

petty or serious. The Federal standard as embodied in /8

U.S.C. 1 states, “any misdemeanor the penalty for which

does not exceed imprisonment for a period of six

months” is a petty offense and does not therefore require

a jury trial.” See Cheff v. Schnackenberg, 384 U.S. 373,

379.

The lower court in this case held the Petitioners were

not entitled to a jury trial because they only looked at

the individual sentences, none of which individually

exceeded six months and, therefore, concluded that the

offenses of contempt were “petty.”

It is urged by the Petitioners that where a judge waits

until the termination of a trial to sentence a contemnor

for several specific contempts, then the aggregate or total

effective sentence required the impanelling of a jury for

the contemnor.

The basis of the Petitioners’ contention rests on several

grounds. First, this case does not fit within the traditional

reasons for denying a jury trial; second, the potential for

judicial abuse alone demands a jury trial and finally, there

exists strong policy reasons why there should be a jury

trial in this case.

8

A. The Traditional Policy Reasons for Denying a

Jury Trial for “Petty Offenses” Do Not Apply

Where There Is a Single Delayed Trial Covering

Several Individual Contempts.

Currently, the Supreme Court interprets the Constitu-

tion as not requiring a jury trial for defendants charged

with “petty” contempts because of several policy rea-

sons, but none of these reasons have any persuasive value

in a case such as this.

The first reason advanced is the prophylactic value of

immediate punishment as a deterrent against future

similar conduct in the same proceeding. Naturally, the

Courts have a legitimate interest in protecting protracted

judicial proceedings from continuous disruptive behavior

and by permitting a trial judge to impose a mild penalty

for misbehavior, the Courts will often prevent further

occurrences during the same trial. In the instant case,

however, where the hearing on the contempts occur after

the original trial is completely over, there isn’t even a

remote possibility of deterence.

The other principal reason for denying a jury trial for

petty offenses has been the judgment that the need for

judicial economy outweighs the right of a defendant to

the protection afforded by a jury.

Counsel for Petitioners does not agree with the

previous majority Opinions of this Court that a six

months jail sentence is a “petty” imposition upon the

individual, but there is practical support since the

punishment meted out for most contempts is either a

small fine or a very short imprisonment for a few days.

Further, fines have often been remitted when judicial

tempers have cooled. In this case, however, when the

defendants actually face imprisonment for several years

for a series of events occurring over several weeks, it is

difficult to look at this incident as “petty”, thereby

outweighing the defendants’ rights. '

ws

9

Another aspect of judicial necessity has also been

advanced as a reason for denying a jury trial, because, by

treating the contempts summarily, they may be

immediately handled without delaying or terminating the

main judicial proceeding.’ Again, the problem with this

logic applied to the instant case is that since the main

proceeding has already been terminated, there can be no

possible delay in the main proceedings and the punish-

ment of a sentence following a trial is no less because a

jury has been interposed between the judge and the

defendant.

B. The Potential for Judicial Abuse Requires the

Imposition of a Jury Between the Judge and a

Defendant.

The Court has long recognized the necessity of limiting

judicial power in contempt cases by interposing pro-

cedural safeguards between a human judiciary and a

defendant charged with contempt.” Generally a judge is

looked upon as the impersonal arbiter dispensing justice

with no preference or personal interest in the outcome of

the case. Exactly the opposite is the situation in a direct

criminal contempt case. The judge himself may be either

the person villified or, if not the recipient of a personal

See In Re Dobbs, 156 U.S. 565 (1895) at 596. “The summary

power to commit and punish for contempts tending to obstruct or

degrade the administration of justice is inherent in courts of

chancery and other Superior courts as essential to the protection of

their power and to the maintenance of their publicity ...”

2See Sacher v. United States, 343 US. 1, at 12 (1925): “That

contempt power over counsel, summarily 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 the human flesh is heir.”

10

attack, probably the attack was on a close personal friend

and a day-to-day associate and working coleague. Even if

these facts are not present, the judge has a vital interest in

redressing an affront to the respect of the Court, which

by association is also a vicarious affront to the trial judge.

Theoretically, one must recognize the potential for

abuse by basing the jury trial requirement upon the

punishment attributed to a single offense and con-

comitantly ignoring the aggregate effect upon the indi-

vidual. Any judge may ignore the jury trial requirement

in a case involving one protracted proceeding by the

simple expedient of isolating the events in a continuous

course of conduct, thereby individually prosecuting the

alleged multiple contempts. Indeed, the judge in a

situation involving legitimately isolated contempts may

avoid the jury trial requirement on serious offense by

distributing the greater punishment for the serious

offenses over several petty offenses, thereby keeping each

one within the six month proscription.

While the divergence between general legal theory and

particular fact has been long recognized in contempt

cases of this type, they coincide. In United States y.

Seale,? Judge Hoffman, by isolating occurrences and

aggregating the punishment, was able to impose a four

year jail sentence for a series of “petty” contempts.

Indeed, he accomplished this with not only one defend-

3451 F.2d 345 (7th CCA, 1972).

ant but with several.* In this particular case, Judge

Robert Van der Voort was able to give the petitioners

effective sentences from three years, two months to two

years, eight months. (App. 90). In fact, a sentence of one

year was given to petitioner (App. 70), Codispoti, and

when the effect of the error was realized, the judge

reduced the sentence to six months (App. 73).

C. There Are Several Strong Policy Reasons for

Affording a Jury Trial in a Case Such as This.

One of the main problems inherent in exercising the

contempt power of the Court is the difficulty of the

defendant perceiving the Judge as an impartial arbiter.

Unlike a normal judicial proceeding, in direct criminal

contempt cases, the Judge is the person who initiates the

charge, the prosecutor, the trier of fact and, finally, the

person who metes out the sentence.

In this particular case, the Judge emphasized on several

occasions to the petitioners that this matter was between

the petitioners and the Court, and that the record would

“The contempt sentences imposed were:

Defendant Charges Sentence

Dellinger 32 specifications 2 years, 5 months, 16 days

Davis 23 specifications 2 years, 1 month, 14 days

Hayden 11 specifications 1 year, 2 months, 14 days

Hoffman 24 specifications 8 months

Rubin 16 specifications 2 years, 1 month, 23 days

Weiner 7 specifications 2 months, 18 days

Froines 10 specifications 5 months, 15 days

Weinglass (Attomey) 14 specifications 1 year, 8 months, 28 days

- Kunstler (Attorney) 24 specifications 4 years, 13 days

THE TALES OF HOFFMAN 287-89 (M. Levine, G. McNamee &

D. Greenberg ed. 1970)

12

speak for the Court and the petitioners could speak for

themselves. (App. 45, 47).

The extreme sense of the petitioner’s frustration was

apparent in Petitioner Codispoti’s outburst when he

stated that he tried to act as a gentleman, but that the

Court appeared to be so biased and had so prejudged his

case that he had no respect for the Court. (App. 47). This

allegation is particularly illuminating in light of the

contempt citation in which Codispoti was cited for

contempt for accusing the trial judge of being in league

with prison authorities.

The great benefit that would inure if a jury trial were

required in this instance is the appearance of impartiality,

As stated by Mr. Justice White in Baldwin v. New York:

“But the primary purpose of the jury is to prevent

the possibility of oppression by the Government;

the jury interposes between the accused and his.

accuser the judgment of laymen who are less tutored

perhaps than a judge or panel of judges, but who at

the same time are less likely to function or appear as

but another arm of the Government that has

proceeded against him.” 399 U.S. at 72

Secondly, it is unwise for this Court to permit

unnecessary extension of the contempt power of a trial

judge. An extension is directly contrary to the long held

notion that such power should be limited to the “least

possible power adequate to the end proposed”. Anderson

v. Dunn, 6 Wheat! 204, 231. Indeed, it would be contrary

to the continued policy of this Court over a period of

several years to afford defendants charged with contempt

the procedural safeguards that are afforded defendants in

normal criminal cases.

Such sweeping statutory authority must necessarily

be limited. [T]he grant of summary contempt

power ...is to be grudgingly construed so that the

instance where there is no right to a jury trial will be

_

13

narrowly restricted to the bedrock cases, when the

concession of drastic power to the courts is neces-

sary to enable them to preserve ... authority ...

order . . . (and) decorum . . . Farese v. United States,

209 F.2d 312, 215 (1st Cir. 1954)

The recent decision of United States v. Seale, 461 F.2d

345 (7th Cir. 1972), adopted this reasoning in requiring

that multiple contempts must be cumulated if the judge

waits until the termination of the trial to sentence the

contemnors.

“If a judge may wait until the termination of a trial

to cite a contemnor with numerous charges of

contempt, penalizing each specified instance with a

sentence of six months or less and thereby avoid

impanelling a jury, the potential for abuse is

obvious. Utilizing this procedure any judge could

review the record to single out ‘discrete’ instances of

contempt, impose up to six month consecutive .

sentences for each instance and thereby imprison

the contemnor for a theoretically unlimited term.

He would in effect, have the power whether the

safeguard of a jury trial should be interposed wholly

apart from the total punishment he metes out”’. 461

F.2d at 353.

THE STRONG POSSIBILITY OF A SUBSTANTIAL

TERM OF IMPRISONMENT REQUIRE THAT AN

ACCUSED MUST BE AFFORDED THE RIGHT TO A

JURY TRIAL.

The Pennsylvania Statute (Pa. Stat. Ann. 17 §2042)

authorizing imprisonment for contempt of court theo-

retically subjected the Petitioners to unlimited prison

sentences because no limitation upon the length of

imprisonment had been statutorily imposed. This case,

"

therefore is controlled by Baldwin v. New York, 399 US, _

66, wherein the defendant upon conviction was liable to

a minimum one year sentence for jostling. This Court

held in Baldwin, that the defendant must be afforded a

jury trial “on the basis of a possible penalty alone”

exceeding six months. And it is only “[w]here the

accused cannot possibly, face more than six months

imprisonment” that the need for a jury trial is out-

weighed by other considerations. (Emphasis added).

Moreover the Petitioners were not only faced with the

theoretical legal possibility of a substantial sentence, they

had indeed earlier received sentences in excess of twenty

years for their acts from the Judge who had first

sentenced them. There were absolutely no indication

what sentence they would receive from the new trial

Judge if they were found guilty. However as an indication

of how the courts viewed their acts, Mr. Justice Douglas

charterized their actions as a shock to those raised in the

Western tradition.* The Chief Justice of Pennsylvania

Supreme Court termed their conduct “‘outrageous’”® and

the trial court called their actions “‘dispicable, insolent

and shocking’’.

In this case the Petitioners faced a judge presumably

unfamiliar with their case and therefore incapable of

assessing a penalty before the trial began. Nonetheless,

the real possibility existed that a sentence of more than

six months would result, thereby fulfilling the require-

ment of Baldwin.

By refusing to initially grant a jury trial the lower

court judge arbitrarily prejudged the case and decided

14

5 App. 17.

© App. 20.

15

that the offense was petty and more importantly

deprived the Petitioners of a right to interpose a jury of

fact-finders between themselves and the judge. The Judge

sentenced Petitioner, Codispoti, to one year evidencing

that the contempt was indeed serious. The subsequent

reduction of the sentence to six months was a fruitless

gesture.

CONCLUSION

For the reasons set forth above, Petitioners respect-

fully request the relief requested be granted.

Respectfully submitted,

GEORGE H. ROSS

Public Defender

JOHN J. DEAN,

Chief, Appellate Division

Office of the Public Defender

of Allegheny County, Pennsylvania

Second Floor, B.F. Jones Annex

311 Ross Street

Pittsburgh, Pennsylvania 15219

Counsel for Petitioners