Tuesday, July 28, 2020

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The Delaware Supreme Court reversed and remanded two contempt citations against a high-profile criminal defense attorney.

The Superior Court twice found Joseph Hurley, a Delaware criminal defense attorney, in contempt of court and in each case imposed a $1,000 fine. In the first case, after the court warned Hurley not to show up late for another calendar call, Hurley arrived late and did not notify the court he would be late. In the second case, after the Superior Court ordered Hurley not to comment to the media during a high-profile criminal trial without applying first to the court, and Hurley understood those conditions, Hurley commented to the media about the case. A newspaper covering the criminal prosecution printed Hurley’s comment.

He appealed

While we sympathize with the Superior Court’s frustration with discourteous conduct and recognize the court’s need to maintain order and respect for its authority, the court’s rules of criminal procedure and Delaware law limit summary criminal contempt citations to conduct in the court’s presence. Under Delaware law and the Superior Court’s Rules of Criminal Procedure, summary contempt orders should not be used to punish tardiness to court and statements made outside of court that violate court orders. Because Hurley was entitled to advance notice and a separate hearing before the court could find him in criminal contempt in the two cases, we reverse both contempt orders and remand to the Superior Court, if it chooses to do so, to issue orders to show cause specifying the infractions and then to conduct hearings to adjudicate the contempt of court charges.

After the attorney spoke to the press, the court clarified an early order and directed counsel not to comment on the case going forward

A few days later, the court held another conference to confront Hurley about more statements to the media. The court told Hurley that it read a newspaper article that said “Defense Attorney Joseph A. Hurley acknowledged that [the defendant] plans to testify next week and declined comment other than, quote, ‘Only a fool counts his chickens before they are hatched. And that’s all I have to say,’ end quote.” Hurley did not dispute that he made the statement, but argued that it did not violate the court’s order. He explained that his interpretation of the order was “not to discuss the case, the merits of the case, anything about the case. And that’s why I said ‘only a fool.’ It’s a push-away just to say I don’t want to talk to you.” He argued that he made the comments not to be rude to reporters and the comments would not be prejudicial, were within the spirit of the order, and were functionally the same as “no comment.”

He was held in contempt and fined $1,000.

The court rejected the contention that it was a civil contempt

The fine did not compensate anyone for the trouble caused by the contempt. Instead, it was a punishment for disobeying the court’s prior order. There was no opportunity to reduce or purge the fine through compliance. Thus the fine was a criminal sanction. Similarly, and as the parties agree, the contempt sanction levied by the court for Hurley’s lateness for the court calendar was criminal.


Both contempt charges were criminal and indirect. Consistent with due process and the statutory framework for adjudicating contempt charges, Hurley was entitled to advance notice and a separate hearing. The Superior Court plainly erred in entering summary contempt orders in both cases.

Delaware Online reported on an unrelated bar discipline matter involving the attorney

Joseph A. Hurley, a prominent Wilmington defense attorney known for his bravado and courtroom theatrics, was disciplined by the Delaware Supreme Court on Wednesday for making sexually explicit remarks to state prosecutors and for disparaging a former client who had lodged a complaint against him.

Hurley, 75, was ordered by the court to enroll in and pay for a professional training program within six months dealing with "respectful treatment of colleagues and opposing counsel" and "the need to refrain generally from inappropriate discussions of a sexual or religious nature" in his law practice. He also must pay the costs associated with an Office of Disciplinary Counsel investigation against him, which led to the public reprimand.

(Mike Frisch)


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