No Fucking in DC Superior Court

DEFENDANT:  I ain't takin' this shit no more.
JUDGE:  You watch your tongue young man, or you'll have more to worry about than just capital murder.

It was Lubbock, Texas.  1989.  Just a few days before I moved from there to Ohio.  Michael DeWayne Stearnes was facing charges of capital murder and the District Attorney was trying to get the judge to kick his court-appointed attorneys off the case because they'd had the nerve to try to interview the state's key witness (who was staying at the home of the Chief Assistant Prosecutor).

Anyway, there was a hearing.  Stearnes wanted to keep his lawyers.  Ultimately, he jumped up and, aw hell, here it is again.

DEFENDANT:  I ain't takin' this shit no more.
JUDGE:  You watch your tongue young man, or you'll have more to worry about than just capital murder.

I'm not actually sure I have the first clause of the judge's response exactly right (I don't have the transcript page in front of me), but the rest is exact.

The judge was, apparently, satisfied with his frightening threat.  He didn't actually hold Stearnes in contempt.  (He did remove Stearnes's lawyers, but the Court of Criminal Appeals made him give them back.)

Not so lucky the anonymous defendant in D.C.

In August of 2000, he entered a guilty plea to a couple of drug offenses.  Six years later, after  he was released from prison but while he was under supervised release (which is something of a cross between parole and probation but isn't exactly either) he entered a plea to second degree murder and was sentenced to 26 years. 

In her opinion for the DC Circuit Court of Appeals, Karen LeCraft Henderson explained what happened next (I'm deleting citations to the record).

The appellant’s commission of second degree murder violated the terms of his supervised release and, at a hearing on May 18, 2009, the district court revoked his supervised release and sentenced him to thirty-six months’ imprisonment to run consecutively to his sentence for the murder conviction. During the hearing, the appellant repeatedly attempted to interrupt the district judge and, after the judge imposed his sentence, exclaimed “Fuck y’all.”  The judge immediately found “that [the appellant] ha[d] committed contempt of court by uttering a profanity at me in my presence, in my sight, and in a calculated way” and sentenced the appellant to an additional year of imprisonment.

Here's the basic rule of criminal contempt as Henderson explained it (citations left in this time).

A federal court is empowered to punish criminal contempt by fine or imprisonment. 18 U.S.C. § 401. Criminal contempt includes “[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” Id. § 401(1); see also Fed. R. Crim. P. 42(b) (“Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies . . . .”). Criminal contempt requires: “misbehavior of a person, in or near to the
presence of the court, which obstructs the administration of justice, and which is committed with the required degree of criminal intent.” United States v. McGainey, 37 F.3d 682, 684 (D.C. Cir. 1994).

Got that?  Here's the simple English version.

Criminal contempt is misconduct in front of or close to the judge that is intended to interfere with the court's business and actually does.  And it can be punished summarily.

Back in 1962, in In re McConnell, the Supreme Court put it this way.

[B]efore the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice.

Since the anonymous defendant in DC didn't say "Fuck y'all" to the judge until after he'd been sentenced, the proceedings were over, and no other court business was going on, he could neither have intended to obstruct justice nor actually have obstructed it.  There was, he said, no "actual obstruction of justice" so he couldn't be held in summary contempt.  

Ah, what a foolish grasshopper.

Henderson explained for the court, issuing her own "Fuck you" to the anonymous defendant.  SCOTUS didn't mean what it said in McConnell.  A sufficient insult obstructs justice even when justice isn't obstructed.  And "Fuck y'all" is sufficient.

Which is nonsense.  But now the law in DC.  Where, I am currently happy to say, I don't practice.

Fuck.

h/t Blog of Legal Times