Thursday, August 9, 2001
Page 7
PERSPECTIVES (Column)
Court of Appeal Won’t Come to Rescue of Lawyer Wrongfully Found in Contempt
By ROGER M. GRACE
During his summation in a criminal trial, attorney Steven G. Hanson told Siskiyou Superior Court jurors that the prosecutor did not want them to see the wife and young son of his client, Michael Delgadillo, because he wanted them to perceive Delgadillo as “some sort of drug dealer, gun-toting, evil person [who] deserves to be locked up in prison.”
The judge, Charles N. Henry (since retired), sustained an objection.
Hanson exhorted the jury to return a “just and lawful” verdict, adding that “just” entails receipt of a fair trial. He added a one-liner that was to incur the wrath of His Honor: “Mr. Delgadillo has not received a fair trial in this case.”
Outside the presence of the jury, Henry admonished the lawyer that his remark had been contemptuous, and that if he kept it up, he would have a penalty to pay.
Later, Hanson argued to the jury that the prosecutor and the police witnesses had exaggerated the amount of marijuana that had been seized from Delgadillo (who was on trial for cultivation of marijuana and possession of marijuana for sale, with a weapons enhancement allegation). This dialogue ensued:
“[Mr. Hanson]: Mr. Larson wants you to see Mr. Delgadillo as less than a person, as an evil, drug-dealing person, a gun-toting, rotten character. But I know he’s not. That is the goal of the prosecution, to misrepresent facts.
“Mr. Larson: Objection.
“The Court: Sustained.
“Mr. Hanson: The goal of the prosecution is to represent facts in a way [favorable] to their side. Defense attorneys do it. I do it in this case. We all do it. That is our job. You should never trust any attorney for what they say. Because they’re paid, just like I’m paid to misrepresent the truth to you.
“Mr. Larson: Objection.
“The Court: Sustained. [¶] Counsel, any reference to misrepresentation by any attorney is stricken.
“Mr. Hanson: Excuse me, I should have said to bend the facts to their case, that is what we get paid to do.”
Hanson went on to say of his client: “He’s been more honest than Mr. Larson and myself in this case. We have tried to bend the facts.”
Henry proclaimed he was going to find Hanson in direct contempt, and would hold a hearing in 10 minutes. As it turned out, he ordered a continuance.
The judge proceeded to execute a charging affidavit in which he asserted that Hanson’s statements that Delgadillo did not receive a fair trial and that it was the job of the lawyers to misrepresent the facts “were contemptuous on their face in that judge, prosecutor, defense counsel and the entire judicial process were held out to be a sham and a misrepresentation of the truth to a jury.”
After delays, the matter was heard by another judge, Larry Dier of the Modoc Superior Court , who adjudged Hanson in contempt and ordered him to pay $200 or spend four days in jail. Hanson sought a writ in the Third District Court of Appeal. The writ was denied last week in an opinion by Justice Richard M. Sims III in Hanson v. Superior Court,—Cal.App. 4th —, 01 S.O.S. 3849.
Sims said:
“[P]etitioner’s statement that his client ‘has not received a fair trial’ was contemptuous on its face because it impugned Judge Henry’s integrity by suggesting he had failed in his duty to guarantee a fair trial. Petitioner’s remark constituted ‘[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.’ ([Code of Civil Procedure] § 1209, subd. (a)1.)”
He went on to say:
“A court may hold an attorney in contempt for willful violation of a duty. (§1209, subd. (a)3.) An attorney has the duty to maintain respect to the courts and judicial officers, to abstain from all offensive personality, and not to mislead the judge or jury by an artifice or false statement of fact or law. (Bus. & Prof. Code, § 6068, subds. (b), (d) & (f); Rules Prof. Conduct, rule 5-200(B).) Petitioner violated these duties by arguing to the jury that it was the goal of the defense and prosecution to misrepresent the facts.”
Hanson’s statement that his client was not receiving a fair trial was not a slur aimed at the judge and did not amount to a contempt. Nor were the remarks concerning lawyers’ propensities for bending the truth a contempt…but I’ll get to that aspect of the contempt adjudication in a future column.
With respect to the supposed insult to the judge, Sims discounts a relevant case cited by Hanson—In re Carrow —and relies on two inapposite cases. Here’s what he wrote:
In In re Carrow (1974) 40 Cal.App.3d 924, the Court of Appeal annulled a finding of contempt based on an attorney’s remark, “‘Your Honor, I submit this trial is becoming a joke.’” The appellate court explained the remark was not contemptuous on its face because it did not refer to judicial conduct. (Id. at pp. 927-928.) Moreover, the court concluded the contempt order was defective in failing to recite how the remark obstructed the administration of justice, particularly given the context of the case. (Id. at pp. 928-930.) That is, the attorney had called a probation officer as a witness and was necessarily concerned about limiting the scope of cross-examination. The trial court refused to hear from the attorney when he tried to address the court regarding imposing such limitations. During the prosecutor’s cross-examination of the witness, the witness “ran away with a narrative.” (Id. at p. 928.) As the Court of Appeal explained: “Then came the single expostulation from petitioner. It may have been directed primarily at the witness and only secondarily, if at all, at the judge.” (Id. at p. 929.)
Petitioner fails to address the case distinguished by the court in Carrow, i.e., In re Buckley (1973) 10 Cal.3d 237. There, the Supreme Court upheld a finding of contempt based on an attorney’s statement, “‘This Court obviously doesn’t want to apply the law.’” (Id. at pp. 246, 259.) The Supreme Court explained “it is the settled law of this state that an attorney commits a direct contempt when he impugns the integrity of the court by statements made in open court either orally or in writing. [Citations.]” (Id. at p. 248.) The Supreme Court held the statement was contemptuous on its face because it impugned the court’s integrity by suggesting “that the judge knew the law but deliberately chose to ignore it,” and thus, with no basis in fact, improperly charged “deliberate judicial dishonesty.” (Id. at p. 250; see also Gillen v. Municipal Court, etc. (1940) 37 Cal.App.2d 428, 429 [contempt affirmed where attorney said that opposing counsel had won before he started].)
Looking at the facts in Hanson’s case, it is clear that Carrow applies. Hanson’s comment to the jury that the trial was unfair came on the heels of his protest as to the prosecutor’s conduct. What the jury almost certainly understood was that Hanson was complaining that his client did not have a fair trial because the prosecutor somehow kept the defendant’s wife and kiddy out of the courtroom, was bending the truth in arguing the reliability of exaggerated police testimony, and was painting an unduly negative image of Delgadillo.
I contacted Hanson at his office in Yreka, located in Siskiyou County. He said of his remarks:
“They were aimed at the prosecutor. They weren’t ever aimed at the judge.”
The Carrow court, in differentiating the facts in the case before it from those in Buckley, noted that “[t]he remarks made by counsel, as described below, even considered in the most unfavorable light, do not approach the insulting charge, made in In re Buckley, which directly impugned the integrity of the judge.” Hanson made no “insulting charge… which directly impugned the integrity of the judge.” He didn’t mention the judge. Not a word was pointed to by Henry or Dier that was expressly critical of Henry, and I don’t think that Hanson’s 11-word observation—that “Mr. Delgadillo has not received a fair trial in this case”—taken in context, could reasonably be viewed as denigration of the judge.
Sims appears to have been, for whatever reason, determined to reach a result, and not prone to allow the law or the facts to impede him. Without providing reasoning to support his conclusion, he declared:
“Unlike Carrow, but like Buckley and Gillen, petitioner’s statement that his client ‘has not received a fair trial’ was contemptuous on its face because it impugned Judge Henry’s integrity by suggesting he had failed in his duty to guarantee a fair trial.”
Sims’ conclusion that a defense lawyer’s assertion during closing argument that the prosecution conduct in connection with the trial has caused unfairness to the defendant by necessary implication constitutes an attack on the integrity of the court is steeped in illogic.
Henry did not allege that there was any particularized attack on him. He was miffed at Hanson for saying what he did and apparently relied on the notion that if a judge is miffed, there must be a contempt at the root of it.
Dier did not make any finding that Hanson had slung an insult at Henry. He seemed to view Hanson’s two acts of purported contempt—1.) charging that Delgadillo was deprived of a fair trial and 2.) asserting that lawyers bend the truth—in a blurry manner, with the two acts blending together into a fuzzy blob. In adjudicating Hanson to be in contempt, he said this:
“I find that although the precise word, the misrepresenting or the bending words, were not the subject of a warning by the Court, the whole tenor of the argument it seems to me was that your client couldn’t get a fair trial and that lawyers are there to misrepresent and to bend facts. And that is not a factually true or a legally true statement. Lawyers are there to advocate certainly for their clients, and there often may be a tension between what you can legitimately say and what you can’t say. But I think when you make the statement that it’s your job to misrepresent or to bend facts, that is well beyond the boundary line. The Court—dignity of the Court and the respect of the Court needs to be maintained, and I think that even [though] those precise words weren’t the subject of a warning, that the general tenor of a fair trial issue was continued after the warnings, and so for those reasons I have decided that it was a contempt.”
Dier seemed to be finding Hanson to have committed a contempt in the form of disobeying a court order not to repeat the allegation that a fair trial was being denied. That was not, however, what was alleged in the charging affidavit (and Dier did not amend the affidavit to conform to proof pursuant to Code of Civil Procedure §1211.5).
His order of contempt was skimpy. It merely recited:
“The Court finds that Defendant Steve Hanson is guilty of contempt of Court, in violation of CCP code section 1209.A (1)(3)(5), Rules of Professional Conduct Section B200 (a)(b), and Business and Professions Codes Section 6068 (b)(f).”
The order then proceeded to affix the penalty.
The provisions cited in the order which appear to relate to the lack-of-fair-trial remark, to which today’s column is confined, are Bus. & Prof. Code §1209(a), paragraphs (1) and (5). The former paragraph renders it a contempt to engage in “[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.” The latter paragraph makes “[d]isobedience of any lawful judgment, order, or process of the court” a contempt. The reference to paragraph 5 apparently stems from Dier’s mistaken notion that Hanson had been charged with violating an order.
So, the record before the Court of Appeal, as it related to a purported insult to the judge, was comprised of...
•The allegation in Henry’s charging affidavit that Hanson had portrayed the judge—as well as the “prosecutor, defense counsel and the entire judicial process”—as a “sham”; and
•A bare legal conclusion by Dier that Hanson was guilty of “[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.”
Assailing a judge’s integrity is (unless uttered in good faith and legitimately related to a motion or an objection) a cognizable basis for a contempt adjudication. However, Sims’ pronouncement that Hanson’s remark “impugned Judge Henry’s integrity by suggesting he had failed in his duty to guarantee a fair trial” echoes no allegation or finding below.
It was the Court of Appeal that invented the basis for a contempt adjudication, and then upheld what it had concocted.
In the end, the writ denial was grounded in Dier’s “fuzzy blob” discourse.
Hanson argued that the contempt adjudication was invalid because the order signed by Dier was devoid of factual recitations, required in direct contempt cases. Indeed, the Supreme Court in In re Hallinan (1969) 71 Cal.2d 1179 held that “[a]n order adjudging a person in direct contempt of court must recite in detail the facts constituting the alleged transgression rather than the bare conclusions of the trial judge.”
But, as Sims pointed out, a direct contempt is committed “in the immediate view and presence” of the judge adjudicating the contempt, and Dier was not present when Hanson addressed the jury.
The factual bases for the adjudication of indirect contempts, he recited, do not have to be in the order, but may be found elsewhere in the record. And where in the record does an adequate recitation appear? Sayeth Sims:
“[T]he court orally recited the facts constituting contempt at the conclusion of the January 23, 2001, hearing. Therefore, the contempt order is not void for failure to recite the facts constituting contempt.”
Can Dier’s oral explanation of the contempt, as quoted by Sims, plausibly be relied upon to support Sims’ conclusion that Hanson had assailed the judge’s integrity?
Copyright 2001, Metropolitan News Company