Friday, June 22, 2012

No, You're Out of Order

Actual transcript excerpts from actual Ohio trial courts giving examples of what we tell clients not to do but fear they will (and sometimes do) anyway.
The Court: Let the record show that Mr. Conliff has just asked me if I was going to sentence him on the charge that was before me for consideration, and I told him that, yes, I was, as soon as we had some order in the courtroom. And Mr. Conliff asked me if I wanted my ounce of flesh or blood, I forget now which one it was.
Mr. Conliff: It was flesh.
The Court: If I wanted my ounce of flesh.
Mr. Conliff: I thought we were adjourned. I was bringing it to your attention.
The Court: No, I had not forgotten. But, Mr. Conliff, it makes no difference what you think of me or my decision or my conduct of the trial. As a judge, as long as I am here in this courtroom, I am entitled to the respect of a judge. And your last statement is one of contempt, and I find you in contempt of this Court. And having found you in contempt, I sentence you to ten days in the county jail.
THE DEFENDANT: I wish to appeal.
THE COURT: Well, talk to your lawyer. Your case is over, son. You are an aggravated robber, a damn criminal.
THE COURT: Bring him back, please. Bring him back here, deputy. Bring him back here.
What did you say to me?
THE DEFENDANT: You heard me.
THE COURT: What did you say? Say it on the record.
THE DEFENDANT: That is the way that you did it to me.
THE COURT: What did you say, on the record?
644THE DEFENDANT: You heard what I said on the record.
THE COURT: Did you say, "F—" me?
THE DEFENDANT: That's your business.
THE COURT: Well, f— you too. And I find you in contempt of court. Add six months consecutive.
Now take him out. Add six more to that.
THE DEFENDANT: F—that old mother f ___.
As I said, actual bits of transcript from actual Ohio court proceedings. Which means actual back and forth between the criminally convicted (there's a technical issue on that in the Conliff transcript excerpt, but it didn't matter in that case and certainly doesn't matter here) and the trial judge. As I say, we tell clients not to do that stuff but know that sometimes they will.  And we cringe when they do.
I don't know why, exactly, but Judges get prickly about that sort of thing.
Sometimes it's not language, it's style.  The defendant who shows up for sentencing on a marijuana charge wearing one of these
isn't doing himself much good and might well face an increased sentence.
There's a difference though, between the increased sentence for the t-shirt and the summary sentencing for contempt that Conliff and Drake received.  Actually, there are a bunch of differences, including the fact that people (Conliff and Drake, for instance) found in direct contempt of court can be summarily punished for it, without trial. The court of appeals in Conliff explained.
The power to determine the kind and character of conduct which constitutes contempt of court rests in the sound discretion of the court and it has the power to impose a penalty reasonably commensurate with the gravity of the offense.
But here's another difference, and the one that I'm concerned with now.  The courts of appeals in their cases reversed. Not because there was something wrong with the sentence, but because neither Conliff nor Drake was actually guilty of contempt.
What? You ask.  Not guilty of contempt? For saying "Fuck you" to the judge?  For saying that the judge was demanding his "ounce of flesh"? Surely, they were contemptuous.
Right.  They were.  But being contemptuous isn't the same as being in contempt. From Conliff, again.
Because of the summary nature of a direct contempt conviction, the court must be careful to guard against confusing actions or words which are contemptuous to the judge's personal feelings or sensibilities and actions or words which constitute punishable, criminal contempt of a summary nature because of posing an actual or imminent threat to the administration of justice. In this regard, the words of the United States Supreme Court in the case of In re Little (1972), 404 U. S. 553, are instructive. In Little, the defendant who argued his case pro se had stated in the closing argument to the jury that the trial judge was biased, had prejudged the case and that he, the defendant, was a political prisoner. At the conclusion of the trial, the trial court found defendant in direct contempt for the statements and sentenced him accordingly. In reversing, the Supreme Court stated, at page 555:
"We hold that in the context of this case petitioner's statements in summation did not constitute criminal contempt. The court's denial of the continuance forced petitioner to argue his own cause. He was therefore clearly entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client's cause.* * * There is no indication, and the State does not argue, that petitioner's statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, `The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.' * * * `Trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.'* * *"
Look at that sentence from the middle of the passage in Little.
The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice.
Then go back to the first part of the first sentence of the paragraph from Conliff.
[T]he court must be careful to guard against confusing actions or words which are contemptuous to the judge's personal feelings or sensibilities and actions or words which constitute punishable, criminal contempt of a summary nature.
See, being contemptuous and being in contempt aren't the same thing. Contempt must threaten or interfere with "the administration of justice."  (In this context, "justice" means the business of the court.)
The problem is that the ones wearing robes sometimes, well, we call it robitis.
Look, when you get to wear a funny costume and sit up higher than anyone else in the room and everyone is supposed to address you as "Your Majesty Honor" (complete with initial capital letters), and people have to stand up when you walk in the room and when you stand up to go take a leak, and when you say "Jump" everyone's supposed to say, "How high, Your Highness Honor?" . . . . Well, it's easy to see how that can go to your head.  And after all, the people fucking elected you or the President of the whole damned country said, "You the Man!" (or Woman, as the case may be).  So it's understandable maybe that some judges feel like they can demand decorous language and sweet behavior even from the ax murderers and lawyers who appear before them.*  Or from those who . . . 
Let me take you to the courtroom of the Honorable Mark Mihok, Municipal Court, Lorain, Ohio.

Really, it's not a dress code.  Nor is it a matter of esthetics.  It's a matter of public safety.
Ann Geyser, of newsnet5, explained Judge Mihok's reasoning.
He said the issue is not just a matter of decorum, but he wants all those who come into his courtroom, including the elderly and teenagers, to feel safe.
So Durrell Brooks gets himself sentenced to three days in local slammer, though he gets released after only one. Which is perhaps an esthetically appropriate term (note the lovely horizontal-striped jumpsuit jumpsuit he's wearing when back in court) and maybe less than he'd have gotten for saying Fuck You, Your Honor.  But then, Drake wasn't actually in contempt.  Because he didn't interfere with the administration of justice. (And he didn't add "Your Honor" to "Fuck you.")
The thing is, Brooks, visible undies or not, didn't interfere with it - or even threaten to - either.  Nor, when you get right down to it, did his undies pose any risk to "the elderly and teenagers."
On the other hand, and I say this with all due respect, improperly locking a guy up, even if only for a day, does interfere with it.

*I keep, in a nearby file cabinet, a page of a transcript from a hearing in a Texas trial court.  The defendant was facing capital charges and the prosecutor was trying to get his lawyers kicked off the case for doing a thorough job of pre-trial investigation.  (Really, I'm not making this up.)  So there was a hearing about whether to remove the lawyers, and at one point the defendant, who understandably wanted to keep his lawyers, interrupted, shouting, 
I'm not gonna take this shit no more.
To with the judge responded,
You keep a civil tongue in your mouth, young man, or you'll have more to answer for than just capital murder.
Really, I'm not making it up.

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