Ah, the frustrating question of direct v. indirect contempt,
which so bedevils lawyers, who often have as persistent a problem with
it as they say admirals have with port left and starboard right.
Fortunately the Court of Appeals sorts it all out and re-explains
direct and indirect contempt in a recent opinion as though it were so
simple only a complete idiot would have any degree of doubt about it.
And speaking of idiocy, while surely appellate opinions often describe
a factual and procedural situation that no one involved at the trial
level could ever recognize as the same case, it would be pretty hard,
from the opinion in this case, to say that the defendants weren’t
guilty of astoundingly, appallingly idiotic behavior.
But first, the appellate procedural hurdles event. The Court of Appeals
in Scialdone v. Commonwealth, 51 Va. App. 679, 660 S.E.2d 317
(4/29/08), holds that two lawyers and a law student employee forfeited
their right to raise the constitutional right of equal protection
against their summary contempt convictions because they didn’t
“articulate” any basis for saying they have such a right.
Well. It’s that old Rule 5A:20 again, sure enough.
At least that’s what Headnote #1 of this 35-headnote opinion says, but there does not seem to be discussion in the full text of the opinion of that issue, and the section of the full opinion labeled “[1]” simply states that each of the appellants was, as they contend, denied their due process procedural rights in a contempt proceeding that was not in fact summary – or not properly summary - and that’s why the appellate court reverses and remands (followed by an extremely long recitation of the facts of this case). So even without equal protection rights to enforce, the appellants escape because their due process rights were denied. And that’s because they don’t get thrown out of appellate court under Rule 5A:18. Even though their “objections” to the conviction weren’t sufficient (since the judge apparently didn’t give them a chance to make any), they were smart enough and indignant enough to make a post-trial motion so as to alert the judge to her errors so that she could fix them if so disposed. Before the trial court entered its final written order, they had moved for a stay of execution of the sentence, and as part of their grounds articulated their “wasn’t summary” due process argument.
Before going farther one thing you need to know about this case is that en banc rehearing was granted at 52 Va. App. 165, 662 S.E.2d 98.
The facts as recited are (briefly) that two lawyers, Scialdone and Taylor, and a law student, Jones, were engaged in defending a man accused of all the things you can get accused of by using a computer to solicit sex with a cop posing as a 12-year-old girl. In cross examining the policewoman, Scialdone tried to quiz her about age-limit rules imposed by the internet chat room involved. He pulled out a copy of some rules dated the day before the trial, and the prosecutor objected that it would have to be from the time of the alleged offense to be relevant. In sustaining the objection, the judge told defense counsel that if they wanted to bring in a copy of last year’s rules, they might then be allowed to pursue this line of questioning. Scialdone told the judge that he believed that he had the old rules and would introduce them as part of the defense case. When that time came, Defendant was asked if he made an effort to check out the rules of Yahoo for the chat room, and he testified that his father and cousin had downloaded and printed them out. Having sent the jury out, the judge examined the new exhibit and said “The first chat rules … had a date on the bottom of 7/11/06. So they were printed yesterday. You’ve now shown me what appears to be the exact same thing with just no print date on the bottom.” When she asked why Scialdone’s office had simply printed the same thing again yesterday, but with no date line, Scialdone said they had been unable to find the copy they had gotten from defendant’s father. Through a chain of courtroom events longer than can be recounted here, it became increasingly apparent that the document being offered was a new and recently printed document, disguised by whiteout or paper cutter and xerox to look like an older document, to shortcut actual historical research or investigation, and to indicate that the rules right before defendant’s arrest had not changed and were the same as the rules on the trial date. The judge then got Scialdone’s secretary to come to the courtroom, and called his partner as a witness. The judge simply said, without mentioning the word contempt, that somebody had better confess or everyone was going to pay. Part of what indicated fraud to the suspicious judge was the involvement of three different screen names on copies of the questioned document, and unfortunately one of those screen names was “West [the judge’s name] is a Nazi.” Things went downhill from there. The judge placed Scialdone under oath, but she got no confession. The judge stated, “Somebody has perpetrated a fraud on this court and I will get to the bottom of it … I am finding both you and Mr. Taylor and Mr. Jones … in contempt, and we will deal with that after the trial.” After bringing the law student, Jones, back in and getting him to confess to the opinionated screen name, the judge repeated that they were all in contempt and “we will finish this trial and then we will have a hearing on this matter as far as … anything else you might want to say. Is there anything anybody wants to say right now?” Scialdone objected, saying that he didn’t think there was any basis for a judge finding him in contempt. The judge then said that no chat-rules document would be admitted unless it was one that had defendant’s father’s wife’s screen name at the top and a 2005 date at the bottom, and then Taylor used the whole 25 minutes the judge had given him trying to find such a document in his office, and could not. The court broke for the day, dismissed the jury and gave the secretary a chance to go look for the document, and when all returned, the judge concluded that whether the supposed original document existed or not was irrelevant to the contempt issue because Mr. Scialdone had knowingly attempted to introduce a false document. Scialdone said he would like to know what he was being charged with, whether summary criminal contempt or whatever else, as he may want to have a lawyer, but she said that she was finding all three in contempt right then. After the trial the judge ruled that under §18.2-456 she had found all three in contempt and that the two lawyers attempted to perpetrate a fraud upon the court, which is a criminal offense under §18.2-456, and that Jones violated §18.2-456 by using vile and contemptuous language addressed to or published of a judge. She imposed a maximum sentence of 10 days in jail and $250 fine, and sent a copy of the order to the Virginia State Bar. The three simply said to note their exceptions in the Record.
Three days after this, Scialdone, Taylor and Jones filed motions for stay of execution of sentence, asserting their rights to have a contempt proceeding at which they could present a defense and have attorneys. They also filed Notices of Appeal. All protested that the judge had read a prepared ruling and immediately left the bench without giving anyone an opportunity to present evidence or argument, have counsel, etc. Their accompanying memorandum stated that the offense was not direct contempt because the whole matter was not entirely contained within the Record at their client’s trial, and that the court conducted an investigation, summoning in and interrogating witnesses who were not part of the client’s trial. The judge never allowed the motions to be heard, nor ruled on them, until they filed their stay-of-execution motions with the Court of Appeals. At the request of the Court of Appeals, the trial judge prepared a written order finding §18.2-456(4) misbehavior of an officer of the court; subsection (3) language addressed to or about a judge; and subsection (1) misbehavior in the presence of the court which obstructed and interrupted the proceedings. She went on to explain that she rejected the arguments as to indirect contempt and found the offenses to be direct contempt because the misbehavior was so bad. She explained further that the insulting language is not required by law to be in the presence of the court. As for what took place when the deputy escorted the paralegal back to the office, and when the paralegal searched for documents or did whatever else she was supposed to do there, that was held not to be off-the-Record behavior because the defendant attorneys did not object to its being ordered. (And for two other reasons that the judge stated. (51 Va. App. at 702,660 S.E.2d at 329))
The Court of Appeals, distinguishing the recent ruling in Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), held that in the circumstances the post-conviction motion, and the post-conviction objections, were sufficient to satisfy the Lee rule and preserve the objections for appeal. Since the purpose of that rule and of Rule 5A:18 is to see that the trial judge is informed of the objections, and since Lee v. Lee itself recognizes that appellants’ duty may be fulfilled in many ways, including post-trial motions. When one wishes to preserve objections for appeal through a post-decree motion, the problem is that a ruling has to be obtained from the trial court within the Rule 1:1 interval of 21 days. However, the Court of Appeals says, if the objecting party “does not specifically disclaim the desire to have the court rule on those objections,” entry of any final order adverse to them constitutes a rejection ruling and preserves them under Rule 5A:18. (Ever hear that before?) Trial courts speak only through their written orders, and this court did not issue a written order finding the lawyers in contempt until well after their objections had been made and argued. As for the appellants having filed their Notices of Appeal before the court made its final written ruling, that filing did not deprive the trial court of jurisdiction to act on their objections because appeal notices that were filed early like this do not take effect until the final order is entered.
As for the much-belabored Rule 5A:18, which the Court of Appeals herein keeps circling back to, Nusbaum is time and again distinguished on the ground that there the unfortunate attorney made his “objections” by saying each time that he was not actually asking the trial court to change its ruling, but only making sure he had put something on the Record – a fatal mistake, it turns out.
On the substance, as might be guessed, the problem is simply that – this time anyway – this contempt was simply not direct. This whole opinion constitutes a veritable law review article on the subject of direct and indirect contempt and the Virginia statutes thereon. On the merits, the Court of Appeals makes an effort to explain the difference between direct and indirect contempt as directly and concisely as it can. The first takes place “within the view of the court” and necessitates “immediate vindication of the court’s authority”, and the other doesn’t. Going back to Blackstone and to an 1821 U.S. Supreme Court case, the Court of Appeals majority holds that only the least possible power adequate to the end proposed should be used in contempt cases, and quotes a 1958 case to the effect that “trial courts … must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” The judge’s summoning witnesses to testify and having those witnesses go and obtain evidence for the court to review is certainly a strong indication of its not being a summary contempt proceeding, at which the judge could properly deprive the defendants of procedural and constitutional rights.(The Court of Appeals makes the interesting observation that while the U.S. Supreme Court has never expressly held all of the Fifth Amendment due process rights involved here to be within the Fourteenth Amendment Due Process Clause’s protection, and thus extended it to the States, that Court has, in practice, treated the two as co-extensive.) Not only must the court-disturbing misconduct occur in the judge’s immediate presence, but the judge must have personal knowledge of it, acquired by his own observations of the conduct. It includes only misconduct in open court in the judge’s presence, which disturbs the court’s business, and of which all the essential elements were actually observed by the court. And even in a case where the behavior all took place in a courtroom, but the situation was so confused that the judge could not clearly see and accurately record what each defendant had done, summary contempt is inappropriate. If the judge does not know the facts, a hearing is necessary to discover those facts, and that argues against summary procedure. Here some essential elements of the offenses were not personally observed by the judge and she had to depend on statements made by others for her knowledge. Knowingly offering a falsified document in evidence was (assuming the missing date line made it that) fraud upon the court, which the judge could have properly punished summarily, if she had done it immediately. But this judge did not tell Scialdone immediately, but went into an investigation and an inquiry. Since there was a non-summary proceeding, Scialdone should have been afforded his due process rights therein. Thus his contempt conviction was reversed. As for Taylor, the judge simply had no authority to punish him summarily. Taylor had not even been appearing in the client’s trial, and he was not present in court when Scialdone offered the allegedly fraudulent exhibit. To say that all the elements of Taylor’s misconduct occurred under the eye of the court would be totally wrong. Offering a judge, in the courtroom, a document arguably describing her as a Nazi could be contempt under Subsection 3 of the statute, but the judge did not punish Scialdone, the person who offered that document, but the law student who, out of the presence of the court, had typed the offensive words. Thus the conviction of Jones for that action must be reversed.
Although all the convictions were now reversed, the Court of Appeals went on to examine the arguments of Scialdone and Taylor as to the sufficiency of the evidence to convict them, since, after all, they might be retried. The Court of Appeals believed it appropriate to examine the sufficiency of the evidence at this point, because if it is insufficient, the defendants are entitled to an acquittal, and a remand for retrial would violate the Double Jeopardy Clause. Thus a full evidentiary sufficiency analysis was required. It decides that the evidence was indeed sufficient to find Scialdone and Taylor engaged in contemptuous misbehavior. Taylor intentionally altering the document and Scialdone offering what he knew was a fraudulent document to the court were both offenses that were supported by sufficient evidence. Thus, remand for retrial of the two lawyers does not offend double jeopardy principles.
Judge Kelsey dissented on the ground that the majority’s admittedly masterful job of sorting out the “bedeviling principles of contempt law” was improper because the case was not properly before the Court of Appeals. He says that all three defendants concede that they did not raise any specific due process objections before filing their notices of appeal. Even the motion that they filed was not a motion to reverse or set aside the trial court decision, but only a motion to stay the jail sentence. How, he asks the majority, does that ever save or preserve issues for appeal? The defendants, he says, raised their due process arguments only in support of the stay motion.