In the last 30 days, we have waited patiently in waiting rooms for late doctors, sat stalled in pick-up lines at schools and, yes, even waited for judges. As attorneys, we know that in some courts, 9 a.m. really means 8:59:59 a.m., while, in other courts, 1 p.m. really means 1:30 p.m. We also know that in a few courts, 1:42 p.m. actually means “we are still trying to find a pro temp.”
But try explaining that to your Type-A client, who is (usually) a taxpayer, a citizen and who was ordered to be in court at 9 a.m. He is looking at his watch wondering when his case is going to be called. We advise him that, unfortunately, delays can be part of the court experience. However, one thing we have never advised our clients to do is “tell the court how you really feel.” Or, as Dave Chappelle would say, we have never advised our clients to “keep it real” with the court.
We did not represent Valerie Perez and, therefore, have never had the opportunity to give her advice. If we had, Perez may never have exclaimed in a courthouse hallway, “I waited all f*****g morning and now she takes a break!” when the judge took a recess. For this statement, Perez “kept it real” with the court, but she also received an all-expense paid vacation to the local pokey for a few days.
While this was an Illinois case, the Perez decision raised issues of freedom of expression and criminal contempt that may be applicable in Indiana. See State v. Perez, 2014 Ill. App. LEXIS 723 (Ill. App. Ct. Oct. 1, 2014). Perez appeared in traffic court for a trial on a speeding ticket. Id. at 1. By all accounts, she waited patiently as the court wound its way through its calendar. Id. at 11. However, when the trial judge took a break, Perez exited the courtroom and exclaimed in the hallway “I waited all f*****g morning and now she takes a break.” Id. at 1. Perez then walked “all the way down the hall . . . using the word F, all the way down.”Id. at 4.
Perez’s proclamation was loud enough to be heard not by the judge, but by a bailiff in a different, but nearby, courtroom. Id. at 3. The bailiff informed the trial judge who ordered the prosecutor to draft a petition for contempt, denied a defense motion to continue, and immediately held a hearing. At the conclusion of the hearing, the court found Perez was “disruptive” to “the administration of justice” and that her words were “very disrespectful.” The judge then found Perez to be “in indirect – well it’s criminal contempt.”Id. at 5-6.
After delineating that direct criminal contempt must take place in front of the judge and was therefore inapplicable to Perez’s facts, the appellate court analyzed whether Perez could be found in indirect criminal contempt for her outburst. Id. at 17-19. The appellate court noted that, while certain acts could rise to the level of criminal indirect contempt, Perez’s statements did not make the cut. Id. at 31.
Because Perez didn’t communicate her thoughts directly to the court, didn’t identify the judge in particular, nor direct her vulgarity in reference to the judge, but rather the delay, the court found that Perez’s intent was not to embarrass the trial judge. Id. at 9. Furthermore, there was no showing that Perez disobeyed any explicit court order, and she “simmered down” once confronted by the bailiff. Id. at 10. For these reasons, the conviction was reversed.
Here are some things for judges and lawyers to keep in mind if a litigant is suddenly accused of contempt of court:
“Direct contempt involves actions … interfering with the business of the court, of which the judge has personal knowledge.” Courts may punish direct contempt without formal charges or an evidentiary hearing. Bellamy v. State, 952 N.E.2d 263, 266 (Ind. Ct. App. 2011).
On the other hand, indirect contempt requires the appointment of a special judge and due process protections including notice and the opportunity to be heard. Id.
Judges should not talk to witnesses “off the record” and then conduct the contempt hearing. The Perez court “respectfully suggest[ed] a judge in this situation may consider voluntary recusal after discussing the incident with an eyewitness” Perez, 2014 Ill. App. LEXIS 723 at 8.
Failure to follow contempt procedures could result in judicial discipline. See Matter of D.J., 658 N.E.2d 589, 590 (Ind. 1995), (A judge arrested an attorney and held a contempt hearing with the attorney’s client present and while the attorney wore jail clothes. When the judge tried to set a court date in the client’s case, the attorney noted he “did not have his calendar with him.” The judge did not afford the attorney the “full right to be heard according to law.” Id.)
Remarks about a “delay” or a decision of a court may be constitutionally protected speech. The Supreme Court of the United States “has held that concern for the dignity and the reputation of the courts does not justify punishment as criminal contempt of criticism of the judge or his decision.” New York Times Co. v. Sullivan, 376 U.S. 254, 272-73 (1964).
Here are some things for litigants to remember:
• There can be delays that are out of the judge’s control. Bring a book for recesses.
• If your case is in front of that judge, pay attention. You might learn how your case will be handled.
• Vent quietly and only to your attorney. As Dave Chappelle taught us, keeping it real can go wrong.•
James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at [email protected] or [email protected] The opinions expressed are those of the authors.