Unsurprisingly to many people, the
convictions of Mr. Scialdone, the overreaching Virginia Beach criminal defense
lawyer, were reversed by the Virginia Supreme Court. Of course you
can’t change the Rules in the middle of the game and shift gears from indirect
to direct contempt, and then justify the one kind of contempt conviction by the
legal principles that apply to the other, the Supreme Court explains to the
intermediate court majority. Thus
the summary contempt convictions and jail times for two lawyers and their law
clerk are at last overturned. The
judge, facing what she considered a scandalous libel of herself, held these
lawyers in contempt for perpetrating a fraud with forged evidence produced on
their own computers in their office to get a criminal defendant off and for
sort of, in a roundabout way, calling her a Nazi. With this conduct, the Supreme Court unanimously finds that
the misbehavior certainly didn’t take place in the presence of the court. This judge had run her own
investigation of the matter, bringing the three defendants and their secretary
into the courtroom under oath to testify about it, and had ordered a deputy to
go to the law office and rummage for incriminating documents. This is not the kind of “misconduct
under the eye of the court” that can allow the defendant to be convicted
totally without constitutional due process. This, you will remember, is the case in which the Court of
Appeals panel reversed the convictions as unconstitutional, and that was
reversed by the en banc Court of Appeals.
In a long and tangled opinion the en banc court held that these
defendants had failed to preserve their crucial argument as to constitutional
due process. That was error, the
Supreme Court holds, as was the trial judge’s refusal to give these defendants
a full due process hearing. Scialdone v. Commonwealth, ___ Va. ___,
___ S.E.2d ___, 24 VLW 1050 (2/25/10).