Thursday, December 15, 2011

Threat Or Helpful Advice?

A circuit court judge who "abused his contempt powers and exhibited poor courtroom demeanor" has been publicly reprimanded, fined $1,000 and ordered to pay costs by the Mississippi Supreme Court

One stipulated violation involved a defendant who had failed to appear at a scheduled arraignment. When he later appeared without counsel, the judge made a series of remarks that included "if you are convicted, I'm going to get you." He then threatened the defendant's bail bondsman and ordered the bondsman jailed for a week. The judge released him after three days.

In another matter, he held both prosecutor and defense counsel in contempt for submitting proposed dismissal orders in two DUI cases that had earlier been continued. He locked up the prosecutor and found him in contempt. The prosecutor's hearing was held while he was imprisoned. The supreme court found that the contempt violated the prosecutor's right to due process.

There are concurring and a dissenting opinion by Justice Kitchens. The concurring opinion agrees with the dissent that the court failed to apply the proper standard of review but would nonetheless sustain the findings of misconduct.

In dissent, Justice Kitchens would apply the previous "independent inquiry of the record" rather than deferential treatment to the facts agreed upon by the parties. He would not find any judicial misconduct based on the agreed facts.

Justice Kitchens would not find sanctionable discourtesy in the judge's calling people before him as "Lawyer" or by their last name only:

...I cannot discern how referring to counsel as “lawyer” is any more of an insult than referring to the bench as “judge.” During my long career at the Bar, I deemed it a high honor to be addressed as “lawyer.”

As to the "get you" remark:

Rather than an impermissible threat, I view it as a constructive and emphatic effort on the judge's part to impress upon [the defendant] the gravity of his situation, and certainly that, if he were found guilty, the day would come when he would be brought before [the judge] for sentencing. Instead of  tip-toeing around the serious matters at hand, the judge, in no uncertain terms, made it plain to [the defendant] that it was his responsibility to get in touch with his lawyer in order to have the benefit of the lawyer's assistance...In so doing, [the judge] was fulfilling the duty that this Court imposes on Mississippi's circuit judges to be vigilant in helping accused persons understand the importance of being represented in court by legal counsel.

Justice Dickinson for the majority:

While I cannot dispute that my friend, Justice Kitchens, has vast experience and a
storied and commendable tenure at the bar, I must say that my own three decades as a lawyer
suggest that one knows a discourteous judge when encountering him or her in the courtroom; and a word or phrase discourteously said in the courtroom may very well not appear – on
paper – to have been said discourteously. But the proof-in-the-pudding in this case is that
Judge Smith agreed his “demeanor during the hearings was confrontational and discourteous
to counsel . . . ,” and we take him at his word.

(Mike Frisch)

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