A Lesson in Federal Contempt

 Posted on February 03,2008 in Uncategorized

Here is a thought-provoking little piece on Tom Kirkendall's Houston's Clear Thinkers blog about whether Chuck Rosenthal is in fact facing jail time for contempt in Judge Hoyt's court.

The contempt proceeding is for indirect criminal contempt. It's "indirect" because Chuck didn't commit contempt right in front of Judge Hoyt, and it's "criminal" because the contempt is completed - Judge Hoyt can't hold Chuck in jail until he complies with the order. Tom's argument is that Chuck can't legally be held in contempt because he

has been provided none of the protections that due process of law requires for a criminal defendant. Inasmuch as Rosenthal's allegedly contemptuous conduct did not take place in the courtroom, the trial judge does not have the power to hold him in criminal contempt without a full-blown trial on the criminal contempt charges. Indeed, the trial judge cannot even be the judge in Rosenthal's criminal contempt trial because the judge is a potential witness in that trial.

Likewise, the plaintiffs' lawyer in the civil lawsuit cannot prosecute a criminal contempt case against Rosenthal. Rather, the contempt charge must be referred to the U.S. Attorneys' Office, which then decides whether to prosecute Rosenthal based on an evaluation of the evidence and and the charges. If the U.S. Attorney decides to do so, then Rosenthal is entitled to the due process protections that any criminal defendant is entitled to receive, including notification of the specific charges, trial by jury, and confrontation of the adverse witnesses. The circus going on right now over in federal court doesn't come close to fulfilling those Constitutional safeguards.

It's thought-provoking because for some reason I figured that Judge Hoyt and the lawyers involved knew what they were doing; silly me, that's something I would never do if I were representing Chuck. I'm glad to be wrong because, more than I relish a prosecutor getting something he might well deserve, I enjoy seeing someone slip out of a jail cell by using procedure to his advantage.

Tom's right in part and wrong in part. It appears (I've not yet had to defend anyone against contempt charges in federal court) that the rule that governs is Federal Rule of Criminal Procedure 42:

Rule 42. Criminal Contempt

(a) Disposition After Notice.

Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice.

The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor.

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition.

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; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

Chuck has received procedural due process: notice and an opportunity to be heard. He's getting to cross-examine the witnesses against him, and is getting to call his own witnesses. He's not constitutionally entitled to a jury trial because he's not facing more than six months in jail.

Chuck's statutorily entitled to a jury trial (see 18 U.S.C.A. § 3691), but only on demand. He didn't demand a jury trial, so he gave up that right.

But Judge Hoyt didn't request that the government prosecute the contempt, and the court's show-cause order, entered on January 2nd, didn't "state the essential facts constituting the charged criminal contempt and describe it as such" as required by the rule. Nor did Judge Hoyt disqualify himself from presiding at the contempt trial, which argualby involves disrespect toward him.

Chuck's lawyers haven't raised any of these issues. They might have had to do so before the hearing (which is a rule of thumb) or they might be able to lie behind the log and claim error afterwards.

Can they complain now that the notice was insufficient, or have they waived that complaint?

Can they complain after the hearing that the judge didn't ask the Government to prosecute the contempt, or do they waive that complaint by not raising it before the hearing? (In the leading Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A., the defendant/contemnors objected before trial to the appointment of the plaintiff's lawyers to prosecute the contempt; the Supreme Court agreed with them and reversed.)

Can they complain after a hearing that the alleged complaint involved disrespect toward Judge Hoyt, and that he was therefore disqualified from presiding, or did they consent to him hearing the case by not objecting?

If they can raise any of these issues after the hearing, this contempt trial may legally be a freebie for Chuck. But there's no caselaw directly on point, and leaving this in the hands of Judge Hoyt and Lloyd Kelley on the chance that they can either a) win or b) get another bite at the apple if they lose seems like an exceptionally risky move, if they know what they are doing, or a startlingly ignorant one if they don't.

[Edit: On a few moments' more reflection, I'm voting for "startlingly ignorant". The time to object to this entire proceeding was before subjecting Chuck to cross-examination under oath. None of the procedural errors would bar reprosecution, and Chuck's testimony at this hearing could be used at a later hearing. Because Chuck testified, and testified badly, this hearing was not a freebie.]