Vol. 4, No. 2, Pg. 12. Direct Criminal Contempt.

• Author: By D. Garrison Hill

South Carolina Lawyer

1992.

Vol. 4, No. 2, Pg. 12.

Direct Criminal Contempt

12Direct Criminal ContemptBy D. Garrison HillThe power of a court to directly nd criminally punish contempt committed in its presence has existed, according to Blackstone, "as early as the annals of our law extend." This article discusses the sources, limits and characteristics of the direct criminal contempt power of state and federal trial courts. Neither indirect criminal contempt nor civil contempt are addressed.

Whether contempt is criminal or civil depends on whether the court's intention is coercive or punitive. The civil contemnor alone "holds the keys to the jailhouse in his pocket"; the criminal contemnor can generally gain freedom only by serving a sentence.

Contempt of court is viewed as a crime against the sovereign rather than an offense against the presiding judge, continuing a theory spawned in the King's Court defining the crime as one against the crown. Direct Criminal Contempt in Federal Court

* Elements of the Offense. Ironically, it was a federal judge's abuse of the contempt power that led Congress in 1831 to limit the expansive contempt authority provided by the Judiciary Act of 1789 and pass what is today 18 U.S.C. § 401. Missouri federal district Judge John Peck employed the then-existing plenary contempt power to jail and disbar a lawyer (who, unfortunately, was named Lawless) for publicly criticizing one of Peck's legal opinions. Wilson, Criminal Contempt in the Fedeml Courts, 55 F.R.D. 102 (1972).

A federal district court's power to punish direct criminal contempt is granted by 18 U.S.C. § 401, which provides in pertinent part:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice. . . .

Interpreting § 401, the United States Court of Appeals for the Fourth Circuit has held that:

In order for the conduct to be punishable under 18 U.S.C. § 401(1) four essential elements must be established beyond a reasonable doubt: (1) Misbehavior of a person, (2) which is in or near to the presence of the Court, (3) which obstructs the administration of justice, and (4) which is committed with the required degree of criminal intent.

13United States u. Warlick, 742 F.2d 113, 115 (4th Cir. 1984). The Court further defined the necessary criminal intent as "a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful?

Rule 42(a) of the Federal Rules of Criminal Procedure further requires that before direct criminal contempt power can be exercised, the judge must certify that he or she "saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court." The order of contempt must recite the facts, be signed by the judge and entered of record.

Despite the sweeping language of § 401, Rule 42(a), and Warlick, the United States Supreme Court has held that courts may properly exercise their direct criminal contempt power only in exceptional circumstances where there is a compelling reason for an immediate remedy. Stated differently, time must be of the essence to maintain the order, dignity and authority of the Court. See, e.g., United States v. Wilson, 421 U.S. 309, 319, 95 S. Ct. 1802, 1808, 44 L. Ed. 186 (1975).

The Court has repeatedly stated that in considering contempt punishment a court should employ "the least possible power adequate to the end proposed," and resort to non-summary disposition under Rule 42(b) if possible. Thus, summary punishment is generally proper only when the contempt occurs in open court or otherwise disrupts an ongoing trial. Compare Wilson, 421 U.S. 309, 95 S. Ct. 1802 (direct contempt conviction affirmed where immunized witness refused to testify during ongoing trial) with Harris v. United States, 382 U.S. 162 (1965) (direct criminal contempt conviction reversed when immunized witness refused to testify before grand jury).

The Supreme Court has admonished that direct criminal contempt be used sparingly. A court that could properly hold one in direct criminal contempt during the trial but fails to immediately do so and reserves action until the end of the trial must generally give the alleged contemnor notice, hearing and other safeguards consistent with due process. If the presiding judge is "personally embroiled" in the contempt--such as when the judge has been attacked personally--it is generally held that recusal is warranted for the post-trial contempt adjudication. See generally Wright, Federal Practice and Procedure: Criminal, § 707 (1982).

Contempt is a public crime and therefore must be proceeded with publicly; in camera contempt hearings are per se unconstitutional. U.S. Const. Amendment VI. An unclassified crime in the United States Code, contempt is subject to the general five year statute of limitations for non-capital offenses.

* Sentencing Provisions. Section 401 sets no statutory minimum or maximum; it simply directs that contempt may be punished "by fine or imprisonment." A contemnor cannot be both fined and placed on probation. Because of the myriad factual bases underlying contempt convictions, the United States Sentencing Commission declined to create a specific sentencing guideline for contempt, directing instead that the most analogous offense guideline apply. United States Sentencing Commission, Guidelines Manual, § 2J1.1 (Nov. 1991). The commission further noted that the obstruction of justice guideline may frequently apply. Id., Comment n.1.

As a practical matter, however, a sentence for direct criminal contempt cannot exceed imprisonment for six months or a fine of $5,000; otherwise the offense is transformed from "petty" to "serious" within the meaning of the sixth amendment and the contemnor is therefore entitled to a jury trial. See In Re Jessen, 738 F. Supp. 960, 964 (W.D.N.C. 1990).

The trial court has the discretion to dispense with a presentence report and immediately sentence for contempt committed in its presence, but the court must first state on record that sufficient information exists to enable the meaningful exercise of sentencing authority underl8 U.S.C. § 3553. Fed. R Crim. P. 32(c)(1).

* Appellate Review. A contempt conviction will be affirmed on appeal if (1) there is sufficient evidence to support the trial court's finding beyond a reasonable doubt of the essential elements of the crime and (2) the trial court did not abuse its discretion.

In light of the Supreme Court's instruction that direct criminal contempt power should rarely be used, reversal of direct contempt convictions for abuses of discretion are not unusual. See generally, Note, The Modern Status of Rules

15 Permitting a Judge to Punish Direct Contempt Summarily, 28 William & Mary L. Rev. 553 (1987) (urging greater appellate scrutiny of direct contempt convictions, including express review of whether direct punishment was "necessary" as defined by Wilson).

In the past, federal appellate courts could reduce, revise or modify in any way a contempt sentence. This unbridled discretion, however, was harnessed by the Sentencing Reform Act of 1984, particularly the provisions codified in 18 U.S.C. § 3742. This statute limits the Court of Appeals' power to disturb a contempt sentence only if it is "plainly unreasonable," a beneficial check on appellate courts' second-guessing the highly fact and sensory specific contempt episodes with only the aid of a cold record. See United States v. Gabay, 923 F.2d 1536, 1544 (11th Cir. 1991). Direct Contemptuous Behavior in Federal Court: A Sampling

Behavior constituting direct criminal contempt includes:

* a lawyer reading his closing argument to the jury at a pace so rapid that, despite 19 verbal court orders to slow down, it had to be taped in order to be transcribed, In re: Gustafson, 650 F. 2d 1017 (9th Cir. 1981) (en bane);

* a lawyer hiring a private investigator to contact and question members of the jury venire, Warlick, supra;

* failing to rise in the courtroom on at least 99 occasions during trial, on the basis that rising for the court out of respect for the institution symbolized the superiority of institutions over human beings, In re Chase, 468 F. 2d 128 (7th Cir. 1972);

* failing to rise and refusing to approach the bench as directedafter conviction, and instead going limp and ultimately lying prostrate on the floor after being led to the bench by marshals, Comstock v. United States, 419 F.2d 1128 (9th Cir. 1969).

Failing to rise in itself, without any accompanying disruption, is generally held not punishable summarily under Rule 42(a). See Annotation, 27 A.L.R. Fed. 945 (1976).

A plethora of cases discuss direct criminal contempt for insults displayed before the court, but perhaps no episode rises to the level found in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499 (1971) (conduct was "a shock to those raised in the Western tradition that considers a courtroom a hallowed place of quiet dignity": in addition to numerous expletives, the defendant, in response to the judge's observation about defendant's defense that he didn't "know how to ask questions," replied, "Possibly Your Honor doesn't know how to rule on them," and noted that "[y]ou ought to be Gilbert and Sullivan the way you sustain the District Attorney every time he objects to the questions.").

The famous and infamous pop up in the reported federal cases. There is direct contempt in the trial of The Chicago Eight, with Bobby Seale bound and gagged after contemptuously disrupting the trial in his attempts to represent himself and fire William Kunstler. United States v. Seale, 461 F. 2d 345 (7th Cir. 1972). The delusional pornographer Larry Flynt, exhausting his extensive and inventive lexicon of expletives during an arraignment, appears in United States v. Flynt, 756 F.2d 1352 (9th Cir. 1984).

Moving to have a judge recuse himself is not, without more, contemptuous. Holt v. Virginia, 381 U.S. 131 (1965). The closest questions, of course, arise when counsel continues to argue or examine a witness after the court has ruled such argument or examination improper. See Annotation, 58 A.L.R. Fed. 22 (1982). Although "[c]ounsel has a right to press argument on a court and to direct a line of questioning of a witness that may not at the moment appear relevant to the trial judge," that right must be balanced against the trial judge's right to maintain order and respect for his or her rulings. United States v. Giovanelli, 897 F.2d 1227, 1231 (2d Cir. 1990). Direct Criminal Contempt in South Carolina State Court

* Elements of the Offense. South Carolina Code Ann. § 14-1150 (Law. Co-Op. 1977) provides for punishment of direct contempt but the statute does not empower a court to imprison a contemnor without first affording the contemnor an opportunity to be heard and the right to counsel. South Carolina courts possess the additional contempt power "inherent in all courts," however, and may proceed under that power rather than the statutory provi

16sion. State v. Blanton, 278 S.C. 597, 599, 300 S.E. 2d 286 (1983).

The South Carolina Supreme Court has defined direct criminal contempt as "conduct that tends to bring the authority and administration of the law into disrespect. A person may be found guilty of direct contempt if his conduct interferes with judicial proceedings, exhibits disrespect to the court, or hampers the parties or witnesses. The Court's power includes the ability to maintain order and decorum." Stone v. Reddix-Smalls, 369 S.E.2d 840, 841 (S.C. 1988). Criminal intent must also exist, specifically the intent to obstruct the administration of justice.

The Court has further recognized that "contempt is an extreme measure and the power to adjudge in contempt is not to be lightly asserted." State v. Harper, 376 S.E. 2d 272 (S.C. 1989). The requirement that the proof be beyond a reasonable doubt is implied by due process. In re Winship, 397 U.S. 358 (1970).

Both Family Court and Magistrate's Court are granted contempt power by statute. S.C. Code § 20-7-420(13) (Family Court); S.C. Code § 22-3-950 (Magistrate's Court). Moreover, § 14-1-50 applies to all state courts. See generally, Survey, Criminal Law, 36 S.C.L.R. 119 (1984).

* State Sentencing Provisions. The contempt statutes carry their own penalties but it appears the common law direct criminal contempt power does not. Again, however, any sentence exceeding six months may not be imposed without a trial by jury.

* Appellate Review. A conviction for direct criminal contempt in South Carolina will be sustained on appeal unless it lacks evidentiary support or constitutes an abuse of discretion. Spartanburg County DSS v. Padgett, 370 S.E. 2d 872 (S.C. 1988). The record on appeal, however, must clearly and specifically reflect the acts on which the conviction is based. Direct Contemptuous Behavior in South Carolina Courts: A Sampling

Acts constituting direct contempt in state courts include:

* questioning a probate judge's "professionalism," Stone v. ReddixSmalls, 295 S.C. 514, 369 S.E.2d 840 (1988);

* a defendant's threatening a subpoenaed witness for the plaintiff, State v. Goff, 228 S.C. 17, 88 S.E. 2d 788 (1955);

* baselessly accusing a magistrate, while moving for a change of venue, of improperly attempting to influence jurors, making erroneous evidentiary rulings in a previous trial and being biased against the party, State v. Barnett, 98 S.C. 422, 82 S.E. 795 (1914).

A person cannot be held in contempt for inappropriate dress or appearance unless it is so lackingin decorum and dignity as to require immediate sanctions. State v. Havelka, 330 S.E. 2d 288 (1985).

The South Carolina Supreme Court has been sympathetic to lawyers held in contempt. In a most notable decision, the Court reversed the conviction of a lawyer representing a criminal defendant in Magistrate's Court. After making several pretrial motions, the lawyer was ordered not to speak before first requesting permission to do so. Upon requesting permission to address the Court, he was ordered to be seated, cited for contempt, and required to leave the courtroom while his client was tried and subsequently found guilty. State v. Harper, 376 S.E.2d 272 (S.C. 1989). The Court in Harper recognized

.. that under our adversarial system of justice, zealous advocacy on the part of the attorney must be permitted. The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of Court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty.

Harper at 274. Issues to Consider in Direct Contempt Proceedings

* In the Presence of the Court Requirement. Ample litigation has revolved around whether the contempt has occurred "in the presence of the Court." Although it is clear that ths conduct need not occur in the direct physical presence of the presiding judge, a geographical limitation is implied in § 401. See Wilson, supra. Accordingly, numerous federal

17circuits have held that a lawyer's tardiness or absence at a scheduled hearing cannot form the ground for direct contempt. See, e.g.,

United States v. Willett, 432 F.2d 202 (4th Cir. 1970). However, a lawyer's failure to appear after misrepresenting that he has a conflict before another court has been held to constitute misbehavior "so near" to presence of the Court as to be classified as direct contempt. Ahmed u. Reiss S. S. Co., 580 F. Supp. 737 (N.D. Ohio 1984).

Whether one can be guilty of direct criminal contempt based on the content of pleadings, motions, discovery, affidavits or other written documents filed with the court is a question that has split courts, but the better view is that such "misbehavior" is not committed in the presence of the court. See United States v. Oberhellman, 946 F.2d 50, 52 (7th Cir. 1991). Nor could such written misconduct appear to obstruct the administration of justice.

The South Carolina Supreme Court has held that when a court is in session "it must be considered to be present where its officers, jurors, and witnesses are required to be in the performance of their duties." The Court held that " 'the Court' consists not of the Judge, the courtroom, the jury, or the jury room individually, but of all of these combined. The Court is present wherever any of its constituent parts is engaged in the prosecution of the business of the Court according to law." State v. Goff, 228 S.C. at 24. It is clear that contempt occurring in the hallways or corridors of the courtroom is committed in the court's presence.

* Obstruction of the Administration of Justice. Both the federal and state direct criminal contempt laws require that the administration of justice must insome way be obstructed before direct criminal contempt is properly exercised. The test is generally whether the alleged contemnor interfered with "the performance of judicial duty." In re McConnell, 370 U.S. 230, 234 (1962). The Supreme Court has cautioned that:

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 improbable; it must immediately imperil. . . . [T]he 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.

In re Little, 404 U.S. 553, 555 (1972) (per curiam).

* Selected Constitutional Issues in Prosecution. In an indirect contempt prosecution, at a minimum due process requires that the defendant be given the right to counsel, notice of the charges, an opportunity to be heard and an opportunity to call witnesses. Ungar v. Sarafite, 376 U.S. 575, 589 n. 9 (1964). On the other hand, direct criminal contempt proceedings have been recognized as immune from these due process concerns. Although a defendant has a right to a jury trial if the sentence imposed exceeds six months or the fine levied exceeds $5,000, there is no right to be indicted by a grand jury. United States v. Armstrong, 781 F.2d 700, 704 (9th Cir. 1986). Nor does the rule that a person may not be actually imprisoned without being afforded the right to counsel apply to direct criminal contempt proceedings. IHarris v. United States, 382 U.S. 16 (1965). Conclusion

Justice Hugo Black noted that direct criminal contempt power "stands as 'an anomaly in the law' " and reeks of despotic power. The American Bar Association in the past has derided contempt as counterproductive, arguing that it may in reality create disrespect for the court. Although direct criminal contempt power is vast and subject to abuse, it is necessary. A trial court that recognizes direct criminal contempt as a tool of necessity and, consistent with Wilson, invokes it only to prevent disruption or threats to an ongoing trial, will restore and foster the respect the power is designed to maintain.

D. Garrison Hill is an associate with Hill, Wyatt & Bannister in Greenville.