Swisher v. United States

SCHWELB, Before BELSON and REILLY, Judges, Senior Associate and Judge.

PER CURIAM: Appellant Mickey W. Swisher first charged that he with criminal learned was trial court when He guilty found him of that offense. was imprisonment convicted and sentenced dis- without had the attorney. his case with his Conclud- cuss rights ing that substantial were Swisher’s violated, conviction. we reverse Swisher, a station attendant who service age, was nineteen arrest- years was then charged ed on March marijuana, possession unlawful of PCP 541(d)(1988). in violation of D.C.Code § 33— file that appears It from the court an automobile occupants three one of by police for a stopped had been alleged para- Drugs and traffic infraction. vehicle, from the were phernalia recovered filed informations against all three men. on March

A held status May 4, trial scheduled a.m. on the trial at 9:00 a.m. At 8:20 date, friend Swisher female Agency telephoned the Pretrial Services (PSA) and stated that Swisher that date because he unable to on business, Virginia family in West did not know. the exact nature of which she reported The PSA the contact failure argued that Swisher’s issued a bench warrant judge, who unreliable,3 and that he was arrest. demonstrated Swisher’s pending be “held” asked that the defendant p.m., following day, at 1:00 about trial. office and re- came to the PSA resolving the matter. quested assistance readily from the Although apparent it is had died explained grandfather He that his that both counsel foregoing recitation previous week and that he had been relating to one treating proceeding obliged Virginia return to because to West warrant and the resolution of the bench reported “family problems.” of The PSA of re- modification of- conditions possible judge, to the and Swisher was these events lease, suddenly took on a different the case directed to the courtroom. dimension: case, apparently judge The called Swisher, All Mr. right, THE COURT: resolving should be purpose of what anything you say? want to Bear is there outstanding war- bench done about mind, course, you say anything coincidence, By Camen- rant.1 Christian against you. can be used isch, underly- Esq., counsel in the Swisher’s Yes, go I had to MR. SWISHER: sir. case, one ing drug representing was also home, died and my grandfather because Gaston, was Maurice K. the individual who it expense you, to and was it was judge. trial before the same Mr. then on my grandfa- great expense to me to lose ap- was able to note his Camenisch thus And, go I to home and see ther. wanted when the lat- pearance on Swisher’s behalf put in him last time before he was one called. ter’s case was ground. judge that a The stated for the record sir, Well, unfortunately THE COURT: had been issued. For bench warrant when— counsel, the two benefit of he summarized And, I not able MR. was SWISHER: stated, pros- He and the PSA memoranda. family just was my to make because confirmed, prosecution that the had ecutor And, just I had to be falling apart. day, ready previous for trial the been get hold of Mr. Camen- there. I tried to the ex- government that the had incurred here, busy, I line’s been isch and his pense bringing its witnesses to court. try, and I’ve down here my had friends to com- judge The invited Mr. Camenisch home, busy and the line’s been tried from ment on Swisher’s behalf. night. until 12:00 judge told the that he had Mr. Camenisch sir, Unfortunately when THE COURT: Mr. opportunity speak not had the it has pending, case you have a criminal or to “delve into the circumstances everything else. priority take over noted, He absence.” [his] non-ap- that the defendant’s I believe judge had in trial he and the been both contempt of court willful pearance, [was] day, that previous case on the the Gaston court, and accord- trial, gone to case could not have Swisher’s D, Contempt of ingly will add Count we prej- “real that there was therefore no guilty the Defendant And I find Court. government.2 He asked the udice” to the Contempt of Court. and to quash the bench warrant Camenisch, be- you, Mr. I’ll hear from prosecutor trial date. The set a new him. fore I sentence proposal, but agreed with defense counsel’s January was instituted appeal 2. Gaston case government brief on asserts in its 1. The year than older courtroom, more than It was thus Swisher arrived in that after undoubtedly have and would the Swisher hearing determine wheth- judge "conducted a even if given priority over Swisher been appellant should be held er present. appellant been fact, purpose of was court." identified, retroactively except when never so responded to this contention Mr. Camenisch contempt. guilty found Swisher was regular- thought by stating his client that he ly employed. outset, Well, adjudi- Honor, MR. CAMENISCH: at the Your As we have noted anyone really have an cation the first indication didn’t being contempt proceeding prior calling that a held. him consult with this case. finding, Mr. Cam- Following That, course, again grand- THE

enisch referred to his client’s COURT: also father’s funeral, and stated that “I don’t another risk— ^[5] acting any intentionally he think then briefly Mr. Camenisch allocuted on responded contemptuous way.” Invited by Swisher’s behalf. speak government, prosecutor for the was.[4] I’m already I’ve found that he the discretion deferred to court. talking point. sentencing at about say if anything, Asked wished Swish- invited to allocute judge When counsel stated er sentence, respect Mr. Camen- with No, it, very sorry I’m that I missed and I again protested procedure once isch again. never will do which had utilized: been days him sentenced to five Well, your Honor, MR. CAMENISCH: appeal This jail.6 followed.7 put great I feel been at a disad- that I’ve vantage. calling You’re this II finding guilty, my then the client Court appeal, that his On Swisher contends con- I a really when haven’t even had chance evidentiary viction should be reversed for up not to and all speak to advise him insufficiency procedural error. We that, .right, and I just and I think it’s not conclude that the evidence was sufficient like, go feel rather than forward like process fatally but flawed. that, say nothing he under the should circumstances, just and I think I’ve Evidentiary insufficiency. A. put very position been in a bad here. So, right. you All first address Swisher’s contention

THE have We COURT: against him nothing say? that the evidence was insuffi- 6. The note 4. "risk” described justice system, Reaffirming Court reconsider don’t think that— been involved tence. Swisher, or, and when consult grandfather you of those sympathize quences THE COURT: MR. CAMENISCH: Your MR. CAMENISCH: MR. SWISHER: Is there He time. that he had proceedings market, have to be made a ^[******] comes I don't with— of open driving you being required instead of making his choice, first. in his remarks air with the law before. get entangled willing allegedly, think Mr. Swisher I’m adjudication, that, concluded as follows: apparently into D.C. to take drug report sorry, Five He but it’s a willful coming imposing markets, city wanted to show abide but to. I assume for Mr. days a Honor, alluding any quoted in once to court. job, your shambles, by sentence_ of that sen- the criminal way up advantage go again, has ever will in court provide failure, And, to the see conse- I can Hon- I foot- then said: can his 7.On judge wrote as follows: written "Criminal formity sentially restating beyond confessed to conduct. tration of of ments of criminal disobedience; causing all three ly who conceded in contempt power, ing States, defendant 1324, inquiry, And, a trial from the come The court is not THE violated a condition Wiggins, September such a I into the 295 COURT: think an obstruction a reasonable judges elements justice.” In Re directed; does not A.2d 498 (D.C.1982). The court finds that Super.Ct.Crim.R. defendant. contemptuous you’re (2) district from the outside. prescribed 1, A.2d 579 Listen, of open his after Contempt Ruling” in con- 1988, of a court appear this helpless (D.C.1972). going doubt Mr. Swisher’s oral court that he it’s done. Thank proper court for Judge (D.C. 1976). Thompson, Campbell v. United appropriate method at the fact to see more of it conduct. when a criminal are: orderly 42(a). release in effect order; Wolf exercise findings, beginning A defendant people "(1) knowing 454 A.2d adminis After issued The ele punish proved Willful ... factual Matter you. who (3) es- its of a open how- acknowledged If that support his conviction. cient ever, “I because that he failed correct, retrial would be position were wanted [my grandfa- see go home and Double as a matter of law barred put in the time he was one last before Jeopardy Clause. Burks v. United ther] essentially admitted that he ground.” He 437 U.S. Viewing the a deliberate choice.9 made generally see Lockhart (1978); L.Ed.2d 1 must, evidence, light most as we Nelson, 290- Irick v. Unit- government, favorable to L.Ed.2d 265 (D.C.1989), ed 565 A.2d findings the trial recognizing that con The elements they unless are shown cannot be disturbed (2) (1) tempt are willful disobedience evidentiary plainly support or to be without (3) causing court order an obstruction Columbia, wrong, Browner v. District In re orderly justice. administration of (D.C.1988), con- we Thompson, 454 A.2d (D.C.1982) ample evidence of clude that there was curiam). requires The offense both A defendant’s unexcused willfulness.10 contemptuous wrongful act and a state of the scheduled failure to for trial on Gorfkle, 444 A.2d mind. orderly date causes an obstruction (D.C.1982). In re See justice. administration supra, 454 A.2d at 1327.11 Thompson, apparently challenges the Swisher sufficiency proof the of the first and has described the use of crimi- This court third elements. He claims that his conduct contempt prescribed sanctions as “a nal attempt does not establish “a willful punishing a who fails method of defendant Campbell disrespect disrupt v. United show for the court or to appear for trial.” States, See Warrick United 498, (D.C.1972). proceedings.” n. 295 A.2d (D.C.1987).8 disruption present case 528 A.2d 443-44 The actual hearing, signed 8. At the status Swisher a Notice 10. Swisher’s communication friend, present, through be Court a that he would not to Return to on the trial date. The notice surrender, may prompt both be appear promptly as well as his advised him that "failure to mitigation worthy may your of consideration in result in the issuance of a warrant offense, advised, but cannot alter the fact that he absent- presumably arrest." He was also prior consent of the ed himself without conformity tice, Superior prac- with uniform pursu- court. penalties appear for failure to Act, ant to the Bail Reform D.C.Code 23-1327 § record, (1989). There is no indication in 'the mischief occasioned the un- 11. The intrinsic ordered, many principal anticipated a actor in the that he was in so absence of words, consequences appear May proceedings especially on serious cases such as the one in in multi-defendant raised, Swisher has not either in the trial trial. The which Swisher was scheduled for appeal, question court or on whether there only appear failure to frustrates defendant’s any disobey. Judge court order for him to staff, judge and his the schedules of the found, implicitly, Wolf at least that the Notice to counsel, prosecutor, but also incon- and his own order, a we are Return to Court was court attorneys. and their veniences his codefendants disposed sponte neither to raise the issue sua "wired,” i.e., cases are often Plea offers in such finding "plain to conclude that such a nor accepting contingent defendants on all M.T., error.” (D.C.1988). D.D. v. 550 A.2d Cf. offer, single government’s and a defendant’s may stymie guilty appear several failure to pleas. may properly Willfulness also be inferred en- one codefendant had for trial after In Swisher’s from Swisher’s failure to guilty plea the trial date. The record tered a been warned that his attendance plea to that individ- Raymond disclose if the offer required. v. United does not See (D.C.1979) (in plea was to the or if his prosecution un- ual had been “unwired” A.2d Act, present and had been proof re- information. If Swisher der Bail Reform that defendant prepared plead his counsel indicated of his trial and failed to ceived notice —and strong possibility plea permissible statutory was a supports fulness); inference of will- —then together, a taken Schaeffer, pleas could have been A.2d two 370 (willfulness curiam) (D.C.1977) procedure would have conserved (per inferred which courtroom). of all concerned. attorney’s time and resources failure to return to from fairness. We find substantial merit in great,12 but the his not have been contention. finding sup- it sufficient to did not err port conviction for criminal con- Swisher’s 42(a), Super. governs Ct.Crim.R. tempt. prosecution contempts, provides as follows: Although Swisher has not so char A SUMMARYDISPOSITION. criminal it, position par merits acterized his on the contempt may punished summarily if necessity.” Translat allels the “defense of certifies that he saw or heard terminology, statement to legal ed into constituting contempt the conduct suggested that he failed to come and that it was committed in the actual to court “the harm that would because presence The order of con- court. compliance from with the law have resulted tempt shall recite the facts and shall be significantly exceeded the would have signed by entered breach actually resulting harm record. [his] States, 447 of the law.” v. United argues appli- that this rule has no Griffin (D.C.1982), circumstances, cation to the there- L.Ed.2d 810 raising question person whether need not determine whether We guilty who was found family emergency, the resuscita any Virginia when he being West spouse supposed tion of a or a child who suffered to be the courtroom Wash- Lamson, D.C., alleged attack, ington, committed the offense heart see In re of the court” within (1st Cir.1972) curiam), the “actual 42(a). meaning of Rule necessity de be sufficient to sustain the fense, surely which is one of last resort. frequently issue has most This to attend the We hold that the desire arisen in the context of criminal un grandfather, funeral of one’s however against attorneys who have proceedings may praiseworthy and even derstandable pre in court at the time failed to more, be, not, without constitute “ne does juris the courts in other scribed. Most of 13 cessity.” Anony v. United States have been confronted with dictions which Cf. 111, (E.D.Tenn. mous, type that this F.Supp. question 215 113-14 have concluded in the 1963) contempt has not been committed (attorney in criminal held and should not be presence of the court he failed to for trial because when because, summarily although the dealt with building in which he there was a fire at a by personal observa judge can determine interest; at “great an burden” on owned present, he that the contemnor is not tion mitiga fire in torney caused considered receiving know without addi or she cannot only). tion from sources outside the tional information ab the contemnor’s courtroom whether B. Procedural issues. willful, negligent or unavoidable. sence was Lamson, summary pro- See, supra, 468 F.2d at that the In re Swisher claims 552-53;14 Attorney’s lacking in Annotation: ceedings against him were basic failure that, ap- present at the though to be in court he The failure indicated 12. The trial Yet, case, might pointed to the court. have time is obvious was in trial in the Gaston absence, "certify" trial to another called “con- able to Swisher's if it can be been while the duct", fact, would, impossi- judge. have been presence This the court in a is in the ble, sense, Camenisch was counsel both because Mr. presence is of the offender semantic could not de- and for Swisher and for Gaston the reasons for absence. As to in the court's judges at the men before different elsewhere, fend both they may good presence same time. ones, security depending on witnesses—the officer, by- or of the demonstrators some timely a continuance had If a motion for victim, standers, building attack or the heart made, judge might appropriately have been personnel on other informa- maintenance —or granted reasons. it for humanitarian tardy attorney produce. could tion which impress Lamson, the kinds of events These are supra, F.2d 468 14. As the court said appear on time upon that a failure to us at 552:

91 attend, court, tardiness, con such circumstances occurred or (1982 sight 122, judge’s hearing, & there tempt, 13 A.L.R.4th within the Columbia, little, Supp.1989). anything, In the District of if that notice of is however, attorney’s representation by absence is deemed counsel could charges or presence in the judge’s expected accomplish. to have occurred reasonably be and, limitations dis Moreover, with some substantial a distur- where there has been 91-92, infra, summary con pp. courtroom, punishment cussed speedy in the bance tempt proceedings such cases have been necessary to achieve sum- may be order Gratehouse, 415 e.g., In re sustained. dignity mary vindication the court’s 1388, (D.C.1980) (per n. 4 cu A.2d 1391 382 authority. Harris United Rosen, 151, ); In re 315 A.2d riam 162, 164, 352, 354, 86 S.Ct. 15 L.Ed.2d U.S. (D.C.) curiam), 419 U.S. Oliver, (1965); 333 U.S. 240 see also In re (1974).15 964, 224, 42 95 S.Ct. L.Ed.2d L.Ed. a summa Since it has also been held that in (1948); v. United Cooke ry committed proceeding 390, 394, 69 L.Ed. 767 S.Ct. court, presence the contemnor to crimi- Rights otherwise available charges, right to notice of the see has no need honored such nal defendants not be 306-07, Terry, Ex parte U.S. the contemnor’s conduct cases because (1888), 32 L.Ed. or to open orderly posed such threat to counsel, Ellis, representation by flagrant procedure of the and such a (D.C.1970), government person defiance of the argues that the trial conduct that, instantly suppressed it not proceedings was entire case the court’s punished, demoralization of ly appropriate. Cooke, authority supra, would follow. 45 S.Ct. at 394. recognize, that certain We contemptuous susceptible special kinds of acts are Neither of these circumstances— everything saw more treatment than others. that the and heard cases, summary contempt imperative— immediate The classic and that action is dispensed applies contempt proceeding which the courts have even with where the rights against lawyer otherwise basic such as notice of an absent or witness counsel, juror charges representation by and defendant. The difference be- or been disruptive in the the two kinds of cases has have involved conduct tween personally jurisdictions the in the which follow judge recognized courtroom which has See, pres- beginning e.g., minority from occurs in the witnessed to end. the “absence (assault rule, Dis- supra including marshal the parte Terry, Ex ence of the court” court); Ellis, sustaining this presence supra in of the the trict of Columbia. rule, shouted, minority (litigant judge, adoption insulted the and that court’s fist). for this Appeals All of events Court of banged his the relevant United States respond may against to only explained by witness failed to be witnesses who tamed who often immediately recognized, that "a subpoena; not be available or more than court preparation by by appel An argument three hours the offender. logical advanced been ob- to summon the witnesses or contempt in not committed that this lant necessary court”), tain material to the defense seems dis presence cert. actual 1972). fair. curiam, (Fla. per 265 So.2d 699 missed Allis, 1391, (9th In re 531 F.2d But assume, cf. arguendo, that the case law hold We Cir.) ten (opportunity to counsel for confer with ing the contemnor’s absence occurs that attorney in arrived for who minutes sufficient applies the court to criminal defen late, although been inade would have Kirk, attorneys. as to See In re dants as well witness), juror or quate for 928, ) (af (D.C.1980) (per curiam A.2d 930 413 firming nesses, 267, (1976); Kandel 50 L.Ed.2d 185 97 contempt convictions of wit criminal State, 855 A.2d Md. 250 v. (1969) hearing, after entered show cause (”[s]ince attorney misbe is lateness of an comply subpoena; court cited failure to court, guilty one an havior attorney” analogous precedent); cases as “absent officer of [Maryland summarily Huttoe, (Fla.Dist.Ct. punished be 258 So.2d Aron v. added)). providing]” (emphasis (summary contempt proceedings sus- so App.) statute immediately available to the had not contemnor. Circuit stressed that Moreover, and hear courts which subscribe proceeded by order show cause other (which ing, and a procedure recognized held that such minority rule have also surely distinguishable one which is summary contempt proceedings, in all, contemplates as ordinarily attorney the accused should cases) disruption provides courtroom ade charge oppor an given informed of the attorney’s rights. quate protection of the tunity guilt to it is speak before ad U.S.App.D.C. Sykes United judged. Logan, 52 N.J. 53, 54-55, (1971)(per (1968) (per A.2d cu curiam). tardy is does who or not “One ).17 riam necessarily is dealt to be Brown, summary Although fashion.” In re none these cases is added). (D.C.1974) one, (emphasis A.2d fours with this precisely on all we (D.C. Nesbitt, that, In In re reading suggests think a fair of them 1973), appropri questioned this court proposition general, they stand for by summary proceeding ateness of con contempt summary reme that resort to the 42(a) tempt pursuant to Rule where “the dy in situations should absent contemnor involves, for tardiness issue are not be automatic. When there facts excuse, pres way of matters outside innocence, guilt or or on the which bear on (Citations ence of court.” internal can degree culpability, omitted.) quotation marks through her his or own not ascertain senses, afforded a the contemnor must be (D.C.1979) Hunt, In In re 402 A.2d 834 explain his opportunity to ab II), court, reasonable (Hunt having previously this and, guilty, present if found facts summary sence affirmed ad end, mitigation. certain attorney To basic judication of an who been trial,16 is respected unless there appearing rights fined late for must be $10.00 emergency held that the trial committed reversi as to render this so extreme attorney's by denying error subse ble hold impracticable. We quent judgment to vacate re motion on failure to proceedings based fusing “newly least, consider discovered entitled, the accused presented material evidence” defense being crimi charged with notice that he is support attorney motion which the meaningful assistance contempt, to the nal submit at the time of his was unable to (which a chance tell includes of counsel the sum original adjudication because of to secure or attorney the facts and mary proceedings. character of initial advice),18 opportu and to reasonable her II was practical effect Hunt nity to a defense. substantially severity rig- alleviate rights. these Swisher was denied summary process in the “late began proceeding a routine to context, What as attorney” judge for the trial was a not identified to evidence resolve bench warrant was ultimately required consider (D.C.1976) comports Hunt, procedure more A.2d the court.... That In re 367 155 16. denied, curiam) (Hunt I), closely procedural process concepts cert. due 98 with See also In re unseemly 54 L.Ed.2d S.Ct. Hunt, confrontations be- and eliminates III), (D.C.1981) (Hunt in A.2d the contemnor.” Id. tween court and II, which, following remand in Hunt the trial (citation omitted). at 540-41 adjudication was refusal to vacate dissenting. judge one affirmed with right obviously is 18.The consult with counsel to where the this case than it is more crucial in Later, Yengo, 84 417 A.2d re N.J. in In Allis, supra, attorney. contemnor See (1980), 449 U.S. (ten charges F.2d minutes notice at 1393 (1981), Supreme 67 L.Ed.2d may attorney, to that he consult counsel so unexplained Jersey held that mere of New defense, prepare under the a held sufficient attorney "hybrid” is a between of an absence though obviously inadequate for circumstances contempt “the "direct” and "indirect” respond subpoena a or witness who fails to to proceed practice order to show is to on better summons). respond juror a contempt face who fails to to is in the even where the cause (or testify otherwise address proceed- he should as a participants to the Although judge court) If the client elect- ing adjudication. until or remain silent. advised that Swisher had not elicit- testify, attorney had been could have ed to his counsel, the opportunity cause, consult favorable to his any ed information proceeded only case determina- tact have counseled and would no doubt sentencing. As guilt tion of but also to confrontation.22 rather than a criminal con- soon as he realized that consult with his coun- An process, in tempt proceeding was Swisher’s good also have stood Swisher sel would attorney plain that he was no made sentencing phase stead in relation to thus proceed.19 Swisher was position to proceeding. Reluctant very brief coun- guilty and before his found sentenced speak all on Swisher’s behalf without to him about the case. sel had talked advance, prepare in heaving been able to opportuni of notice and of an Lack that he “believed” Mr. Camenisch did state intrinsically ty with counsel is to consult record. prior had no criminal Swisher think that Swisher prejudicial,20 and we Swisher, however, Not interviewed If the substantially prejudiced here. marshalling precluded from counsel was proceed by judge’s intention to about his client’s back- relevant facts disclosed, had been and if counsel had been education, employment ground, family, opportunity to given relatively a brief character, deeds, record, po- good good or client, he could have deter talk with his part, his own tential for rehabilitation. For any potential there was de mined whether Swisher, having received no advice charge.21 to the Armed with that fense might say on his attorney his as to what client knowledge, he could have advised his said regard punishment, own behalf which on the most fundamental decision Although very little. any namely, must be made criminal time, prior years old at the had no nineteen charge contest the or to con whether to record, em- gainfully criminal leniency and request cede a violation but apparent consid- judge gave ployed, any bring to the court’s attention extenuat ordering work release or a eration to ing circumstances. If Swisher decided might type of sentence “weekend” guilt, deny his counsel would have been protect job.23 Swisher’s position a to advise his client as to whether that “if it’s an judge of the latter’s remark had announced when the case because 19. If addressing great you expense that he was the issue of me in expense was called it was a contempt, rather than the resolution of op- losing my grandfather.” Given minimal warrant, surely bench counsel would have client, prepare could portunity to counsel requested at least a few minutes to consult with ap- diplomatic surely have advised a more Although counsel did not use the his client. proach. “recess," he in effect word "continuance" sort, requested of that and the relief pre- Swisher without sentenced 23.The it. effect denied provisions investigation, although the sentence 32(b)(1), Super.Ct.Crim.R. which details Here, Alabama, Powell dis- (1932), which the circumstances 77 L.Ed. 158 “[n]o investigation, been investigate. opportuni- had not attempt pense No with such an was made to given_ ty Under the circum- of a to do so was not raised the lack Swisher has satisfied. disclosed, we hold that investigation [Swisher] stances in the trial court or presentence any right sub- of counsel in not accorded the and do not decide appeal, and we need not otherwise would sim- sense. To decide stantial ply 32(a) summary applies con- Rule whether ignore to actualities.” be presen- of a tempt We allude to the lack cases. investigation illustrate how mat- to tence family “my judge was the that 21. Swisher told ordinarily be addressed in which would ters surely inquiry just falling apart.” Further through sentencing slip depth can at the time of whether, example, for for to determine called acts in the court the cracks when fashion, illness, "falling apart” a involved serious this a measured detriment of to the any did Swisher could or and what if service sentencing various thoughtful of the discussion family. any perform ill member of his for alternatives. order, judge a the discerned his written In part, perhaps attitude on Swisher’s "cavalier" a even for half an hour pressing There were no circumstances continuance to lawyer, talk to his appeared compel disposi that to immediate Swisher to enable contempt provided the rudiments of a fair heari tion of the case. Even if Swish have ng.24 date er’s absence from court on trial emergency warranting had created an an action, any of of these courses Under remedy, emergency that immediate then rights process due would have Swisher’s passed by would have the time that Consequently, more received attention. proved contempt a proceeding which to be proceeding spot, providing on the without hearing began day half a and a later. charges or with Swisher with notice U.S.App. v. Meyer, United States counsel, was not opportunity an to consult 212, 222-23, D.C. 837-38 “necessary orderly system to maintain (1972), discussing restrictions Gorfkle, of 444 A.2d justice.” supra, re right summarily to after proceed the emer I, (quoting supra, 367 A.2d at Hunt gency passed. There were several al States, 158); v. see also United Jones judge short of ternatives available to (D.C.1989); A.2d v. cf. Offutt summary adjudication of If contempt. 17, 75 S.Ct. United thought of present Swisher was to a risk 99 L.Ed. 11 flight spite attempts his to contact the proceed a to when compel To defendant court and his surrender to Pretrial Ser attorney had the has not Agency, vices his conditions release held to prepare a has been defense accordingly. could have been modified v. error. Brown District Co- reversible 23-1329(a)(1989). The govern D.C.Code § (D.C.1969); lumbia, 252 A.2d see charged ment could have him with willful Thompson Thompson, 559 A.2d v. also appear, failure in violation (D.C.1989). principle, this case indeed, 23-1327(a); a is common § Accordingly, quite similar to Brown. fail to sanction where criminal defendants from is reversed judgment appealed required. come to If a court convention is remanded to the trial court and the case government prosecution al initiated may be any proceedings further which thought insufficiently to be an swift appropriate.25 deemed justice, bring means So ordered. requiring have issued an order could why him to cause not be show should SCHWELB, Judge, Associate hear contempt, held and set the concurring:

ing days a If the later. court were few astonishing under the agree or a opinion that these alternatives rule, postulates unnecessarily minority which combination of them were occurs in the parties to the contemnor’s absence time-consuming, notification in this case judgment contempt proceedings on that criminal proceedings lacked court reversed. charge must be of willful disobedience fairness, emergency commence, there basic about to followed order were manner, Fitzgerald proceeded at issue. See his conviction remain If upon (D.C.1984). consulta- and if had ascertained counsel United circumstances, that essential witnesses tion with his client the trial we invite Under be, produced on the could not other evidence spot, Thompson, disposition in court’s attention to the brought these to the have facts he could supra, n. this court 559 A.2d at 315 applied for a continuance. court’s attention pro- “just held it to be circumstances” opportu- had the In nity reprosecution defendant had where the hibit Swisher, posi- counsel in no talk to serving fifteen-day sen- completed any circum- such tion advise years imposed five almost which had been tence stances. not, however, absolutely pro- We do earlier. proceedings, scribe reinstitution imprisonment for 25. Swisher was sentenced appropriate to leave the decision and think days. court and this five Both against Swisher is war- further action whether stay pending appeal, for a denied his motions of court. the trial ranted to discretion sentence almost two and Swisher served his years ago. Only consequences of the collateral

95 summary contempt proceedings which warranted the denial of such funda- Because represent accepted protections prior departure mental a stan notice of the process, they dards of due and because are proceedings of nature and a reasonable abuse, subject grave authority of opportunity to consult with counsel. I courts to invoke them has been restricted further, however, go would and take “ possible power adequate to ‘the least bury next en banc once and ” Oliver, proposed.’ supra, the end 333 misbegotten unjust minority for all the 274, (quoting 68 at 508 S.Ct. person’s doctrine that a absence occurs Dunn, (6 Wheat.) 204, Anderson v. 19 U.S. and therefore 230-31, (1821)); 242 Young 5 L.Ed. see also justifies summary proceedings at which the v. United ex rel. Vuitton et Fils States protections contemnor is denied the basic S.A., 787, 801, 2124, 481 U.S. 107 S.Ct. conventionally any person accorded to 2129, (1987). power 95 L.Ed.2d 740 The least, charged a very with crime. At the I punish summarily contempt, and thus explicitly decline to extend this shib- dispense with fundamental constitutional beyond boleth the context in which it has “ protections, may ‘only be invoked where applied namely, heretofore been the case — necessary orderly system maintain an lawyer who did not ” 934, justice.’ Gorfkle, 444 A.2d 939 time. (D.C.1982) Hunt, (quoting In re 367 A.2d (D.C.1976) curiam) (Hunt I), 434 U.S. 98 S.Ct. (1977)); L.Ed.2d 72 Thomp see also re power The impose summary courts to son, (D.C.1982) (per 454 A.2d punishment without trial is a most unusual curiam). The “necessities” of the admin Oliver, 257, 274-75, one. In re 333 U.S. justice “require” istration of must summa 499, 508-09, (1948). S.Ct. 92 L.Ed. 682 It ry disposition a before resort to origin right kings, its in the divine Offutt, it. supra, 348 U.S. at 75 S.Ct. and its existence [only] “is understandable at 13. through perspective when seen of its Necessity connotes an irresistible de age inception, age allegedly divine- mand. monarchies, United States v. Bethlehem Steel ly ordained king ruled Cir.1971). Corp., (2d To totally sovereign legal invested with all say, as recently we most did Warrick powers and accountable to God.” R. States, (D.C. United 528 A.2d Contempt GoldfaRb, Power 1987), power punish summarily that the (1963). Consistently with the creed which tends, sparingly, should be exercised if birth, gave contempt au- anything, to understate the constitutional thority “perhaps, has been characterized as imperative. protections Fundamental such despotic nearest akin to power any pow- charges opportuni as notice of the and the existing er govern- our form of ty to consult counsel are not to be overrid ment.” ex Ashbaugh State rel. v. Circuit extraordinary den the absence of circum Court, 1, 8, 97 Wis. 72 N.W. stances leave the trial (1897) (quoted in Green v. United alternative. reasonable 165, 194, 632, 649, 356 U.S. (1958) (Black, J., dissenting)). L.Ed.2d 672 aficionados, prototypi- For Supreme Court has described it as the summary proceedings are cal case which extraordinary power punish “rather appropriate occurred in deemed Stuart required by without the formalities the Bill half cen- England more than three and one Rights prosecution of federal ago. turies a man who had been generally.” crimes felony expressed v. United of a his dis- convicted Offutt 11, 13, throw- pleasure denouement (1954). ing L.Ed. 11 at the Chief Justice. Judi- brickbat1 Presumably, fragment Dictionary Persons of brick which was International judges have utilized as a missile. See who have hurled verbal brickbats Webster’s Third New then, proceedings contempt power not nor be in only cial were are utilized now, both they readily manageable situations which of these when hard conditions (or insults) objects flying are exist. hard around august heads jurists. the of The unfortu- parte Terry, Ex 128 U.S. 9 S.Ct. target nate defendant the of missed his 77, (1888), man 32 L.Ed. 405 a assaulted a wrath, imperfect aim ill-advised but his did “personal marshal the view” the of Ap- not inure to his substantially benefit. ongoing an judge, interrupting trial. The parently pursuant to the order of the Lord Supreme held the Court that Justice, the right Chief defendant’s hand punish had the authority the offender at gibbet, cut off fixed the and was and he once, any hearing. without notice or The immediately hanged presence of authority that the Court stated to take Contempt Power, swpra,

the court. at such action is essential to the of existence 15. “[bjusiness every because cannot be the can suppress conducted unless Although might question one today disturbances, means doing and the of the Lord Chief sufficiently whether Justice punishment.” that is immediate Id. at it his “object made all sublime ... to let it, put As the 9 S.Ct. at 81. Court crime,”2 punishment fit the think peace is breach of the curiae [a] persons agree reasonable facie most that palpable a a con- direct disturbance and a judge authority must have the to deal authority tempt the court. It is promptly, firmly effectively and with those delay, a that does not admit of and case disrupt proceedings. physically judicial who dignity that the court would be without required power preserve Such is in order to punish promptly did not and without integrity dignity judicial and of the trial. process. vindicating “It is mode recognized, Id. law, manifestation, in its majesty active summarily authority punish might be against outrage.” Offutt, obstruction and arbitrarily, id. at abused or exercised 13. supra, U.S. 75 S.Ct. at If found its invocation to be S.Ct. at and flying being the case of the were brickbat justifiable only if the court today, summary disposition, decided albeit satisfied, its from what occurred remedy, with a less drastic would be found hearing, eye that the own and within its justified indispensable because two ac- justice ends of demanded immediate First, present. elements both tion, miti- explanation could and that no outrageous disruptive conduct was so dis- gate offence or [the contemnor’s] that the of the administration “necessities prove the that he committed fact justice” required immediate action. See authority digni- contempt of its such Offutt, supra, 348 U.S. at 75 S.Ct. at ty punishment. instant as deserved Second, misbehavior occurred its 13. 310, 9 Id. at presence, entirety the Chief Justice’s presumably acquired personal knowl- States, supra, v. Cooke United observation, edge of it his own so that Court reiterated existence summarily, need punish there conventional held authority to but fact-finding required is when wit- where it was limited situations try to there lawyers nesses and must reconstruct courtroom, fact, after the events orderly proce- open threat such

which occurred at different time and a flagrant dure of court and such place. person v. See Cooke United defiance 517, 534-35, “very public 45 S.Ct. 69 L.Ed. before the place justice,” as (1925). Controlling hallowed Blackstone decisions it, sup- instantly if Supreme Court establish [that it] MIKADO, SULLIVAN, THE summarily punished. & A. Fisher W. GILBERT also been Pace, II, L.Ed. Act lines 337-39. stances,” threatening as acts the punished, such pressed and demoralization hearing, obstructing authority disrupting will Punish- or judge, the court's follow. may or was so con- utilized proceedings, ment without issue trial not be court trary ordinarily to the usual and indis- prerequisite is not a where swiftness pensable hearing judgment, con- before justice).3 assump- the

stituting process, due that II everything the saw that tion that court open required to went on plausibly that it can be do not believe the for justify exception; the but need that, case, present in the there ex- argued penal digni- immediate vindication the kind the of the which Su- isted conditions ty it. of the court created preme indispensable Court has deemed for summary contempt pow- exercise of the the at 45 S.Ct. at 394-95. opinion As of the court the er. the Oliver, supra, reit re the Court out, certainly points case it was not Cooke, principles Terry erated the proceed in necessary the to for narrowly in a except and held that limited avail- fashion. Various alternatives were cases, charged one with con category of him, compatible to all Swisher’s able tempt be constitution must accorded basic rights. could have modified the others, protections including, among al He conditions of Swisher’s release. could him, against right charges notice of the to cause and have issued order show counsel, right right and the later, at days a few or least tried Swisher that present a defense. The Court stated until could consult deferred action exception pro- these due narrow [t]he possibility his counsel. Another only requirements charges cess includes govern- it been leave to the would have misconduct, court, in open pres- prosecu- bail-jumping ment institute at judge, ence of the which disturbs was no courtroom disturbance business, tion.4 There court’s where all of essen- emergency required immediate ac- tial under elements the misconduct are court, tion; indeed, summary contempt pro- eye actually of the are ob- by ceeding day and a half after served and where immedi- occurred a punishment prevent ate is essential to appear. failed to Swisher had authority” “demoralization of court’s with his own senses could determine public. If before the some essential ele- present, not but there was Swisher was personally ments offense are assessing, infor- way of without additional judge, must observed so others, why Swish- mation from Swisher or depend upon statements made others his con- er had been absent and whether knowledge these his about essential willful, so that “not all duct was elements, process requires, due accord- the offense elements of essential [were] ing to the Cooke accused Harris, eye of the court.” su- and fair as be accorded notice 86 S.Ct. at 354. The pra, 382 U.S. above set out. sustaining pro- only basis for conceivable ceeding summary as the one which the Oliver, 275-76, as supra, 333 U.S. 68 S.Ct. by analogy to here is Accord, judge conducted at 508-09. Harris v. United lawyer” eases. I think that 352, 354, “absent should, Anthony, of Mark (1965) words (summary we 15 L.Ed.2d authority, and not bury that line of “exceptional come to appropriate circum- pitcher of water at the disorderly defendant threw a where a defendant is 3. Even prosecutor). prompt action would otherwise courtroom for, summary contempt proceedings be called con Judge that a criminal Beaudin has held inappropriate if there is reason to enter- adjudication failed to tempt a defendant who sanity. tain Rollerson doubts prosecution subsequent bars a 400, 407-08, U.S.App.D.C. v. United Jackson, 113 jumping. States v. bail United (1964) (eschewing brick- (Super.Ct.D.C. Wash.L.Rptr. Daily avoiding judge, with the bats and direct conflict 1985). it, it, praise extend or even allow to witnesses or the confession of the con- survive. temnor for his knowledge offense, 42(a) apply. Rule does not Ill In the based his per opinion recognizes, As the curiam ruling essentially on the “confession” of 90-91, pp. supra, majority see a substantial contemnor, open made in court without attorney’s courts have concluded that an prior opportunity to consult with counsel. appear failure to in court on time not appellate Several federal courts have punished summary contempt. be as See also summary contempt reasoned that pro- Annot, 123, (1982 13 A.L.R.4th & ceedings inappropriate are attorneys where Supp.1989). They have done so because appear, have failed to because there is no contrary illogical, unfair, rule is and irrec- penal “need for immediate vindication of Supreme precedent oncilable with Court re- dignity of the court.” e.g., Jessup garding summary the limits of the con- Clark, 1068, (3d Cir.1973); v. 490 F.2d 1071 tempt power. Willett, 202, v. United States 432 F.2d 205 Logic surely strained the notion (4th Cir.1970) curiam) (both (per quoting that presence. absence amounts to State Cooke, 536, supra, 267 U.S. at 45 S.Ct. at 425, 429, 329, Ryan, v. 59 Hawaii 583 P.2d 395). In Delahanty, United States v. 488 (1978) curiam). (per 332 As the court 396, (6th Cir.1973), F.2d 398 the court con- pointedly observed in Klein v. United attorney’s appearance cluded that an late States, 106, 108, U.S.App.D.C. 80 F.2d 151 present “exceptional did not circumstances 286, (1945) curiam) (per (quoting 288 Ex such threatening ... as acts Clark, parte 208 Mo. 106 S.W. disrupting or obstructing court (1907)): proceedings” (quoting Harris, supra, 382 petitioner himself was [contemnor] 354), and thus did absent. His acts ad interim were like- justify summary punishment. As the doings wise absent. His him. went with Willett, put it in supra, 432 F.2d at exquisite It would seem like an pal- 205, any dignity affront to the of the court pable complain contradiction of terms to resulting attorney’s from the belated arriv- petitioner one breath that [con- al did not constitute “such an unusual situ- absent, and his acts temnor] required ation that action was say the next breath such absence protect judicial institution itself.” is, presence; constituted a a con- tempt presence committed disapproving summary pro the use of court. cases, ceedings lawyer in absent several attorney’s An failure to can thus be urged judges vigilant courts have characterized occurred power escape lest “the drastic authorized of the court in a semantic permissible limits of reason and fair Lamson, sense. 468 F.2d 552 ness.” Pietsch v. President the United (1st Cir.1972) curiam). (per Cir.1970) (2d Clark), Justice Willfulness is an element of criminal con- (1971); L.Ed.2d see tempt, and such willfulness ex- “[w]hether Marshall, supra, 451 F.2d at 374. also something ists is not that the court can be warnings These should be heeded. aware of from its observations in the own inquiry courtroom without from other Court, Taylor

sources.” v. District IV 1967). (Alaska P.2d As the court Marshall, put it in United States foregoing authori- Given force Cir.1971): (9th F.2d ties, might why one wonder the Dis- well 42(a) eases, minority trict of to the is his own Columbia subscribes Rule of what occurred. If he “counsel’s absence occurs best witness depend upon testimony presence” hangs of other a tale. must rule. Therein

QQ trying patience judges of trial Forty-five years Ap- the Court of ago, peals for this Circuit held Klein v. Unit- through which obstruct normal absences attorney’s unex- supra, that an ed upon but border be- procedure courtroom following a in court cused failure ing excusable. in “the five-day recess was not misconduct I, supra, 264 A.2d at 895-96. Sykes as that presence of court” term Sykes appealed next to the United States 268 of the federal used section Judicial con Appeals, which reversed his Code, and could not be U.S.C. § for insufficient evidence willful viction summarily. Twenty-five years punished States, 144 U.S. Sykes ness. v. United Klein, however, in Sykes after v. United (1971) (per 444 F.2d 928 cu (D.C.1970) App.D.C. A.2d II). I), attorney’s riam) (Sykes (Sykes appellate this court affirmed an federal contempt to however, criminal conviction failure agree, Sykes’ did not court appear hearing. Although the trial for a alluding to procedural contentions. After cause, an to judge had issued order show holding attorney’s that fail its in Klein an following Sykes guilty and had been found presence in the ure to did not occur that hearing, Sykes appeal contended meaning the court the of the within in the contempt had been committed statute, the continued: federal court proceed- court that presence of the and the however, in appellant’s In the and ings by the judge utilized were insufficient. the previous applying decisions District held, however, This court that the District statute, the District of Co- of Columbia acknowledged of Columbia follows what Appeals adopted lumbia Court of minority be the rule contrary Shorter, See In re view. conduct, wit, the ab- offensive Saul, (D.C.1967); A.2d 318 In re D.C. sence, in presence occurs (D.C.1961).5 Mun.App., may and the unexcused absence We see no reason for us interfere court, provided held contempt to be permissible court’s inter- local

notice and an to be heard are statutory contempt its own given. pretation of authority. pertinent We think it to note (internal at and quotation Id. marks also that the District of Columbia omitted). Quoting footnote Arthur have, reported in the courts least Superior Angeles County, Los cases, hearing cause 777, 780-81, conducted show 62 Cal.2d P.2d (1965), attorney contempt. in Cal.Rptr. pro- finding before court following practice its justification light vided the of this we cannot In holding: interpretation say that the local court’s attorneys statute is recurring prob-

Elusive are a of the District of Columbia courts, particularly procedure lem trial in calen- unreasonable this departments, dar a fact protection to adopted inadequate affords judicial court take notice. contempt. [Several] attorneys cited for have cases of this nature reached words, In 444 F.2d at 930. other Id. at decade, past and in court in the [some] pro- approved a appellate the federal there evidence of re- those cases issued an cedure under which peated by attorneys held offenses offending attor- to show cause order Sykes’ contempt. Attorney To hold that far subsequently held a ney —a appointed hour failure to at the place in the what took cry indeed from contempt pres- in the was not committed present case. meaning ence of the court within jurisdiction of the doc- Acceptance in this provide insulation [our statute] attorney’s occurs that an absence trine them- attorneys who overextend now subsequently court has selves, further encourage go them fact, I, decisions position.” of these Sykes Shorter neither 5. In this court also alluded to p. "minority adopting See "implicitly” addressed the issue all. Saul infra. led, holdings question whether the court perhaps inexorably, should follow minority criminal convic rule rather than majority have affirmed which, Sykes, tions cases unlike Saul doctrine was not raised either of these Shorter, cases, cause was order show nor was it of much conse- issued, and in which the contemnors were quence, proceed- since each trial adjudicated immedi by ed to show cause followed order ately after their belated arrival in court. that can be hearing. most said of (D.C. Gregory, In re 387 A.2d 720 question is that the Saul and here Shorter 1978); Hunt, (D.C.1976) 367 A.2d 155 record,” presented merely “lurkfed] curiam), Fall, 266 U.S. Webster v. (1977).6 54 L.Ed.2d 72 That 148, 149, 69 L.Ed. 411 These deci- turn, development, in led to the even more reasonably sions cannot be viewed as au- procedure abbreviated which was here uti precedents subject. thoritative on the Id. judge. lized the trial I, explicitly adopt did Sykes this court perhaps predicta- This downhill slide was pres- occurs in the court’s “absence jurisdiction ble once the courts of this ac- II, theory, Sykes in the federal ence” “minority” ceded to the rule. Since con- appellate countenance that court chose to tempts of the court are has dutiful- Sykes, result. Since this court 42(a), summary contempts, Rule see in ly precedents perhaps adhered to these required since no is in the kinds of them, however, dozen cases. In none of disruptive contempts by epitomized Ex has the court discussed the limitations of a parte Terry flying or the case of the brick- summary contempt authority, bat, pristine logic but indiscriminate Supreme as defined Court cases might lead to the conclusion that the law- Oliver, Cooke, nor has such as Offutt (or yer layman) who arrives result attempted it to reconcile the which it imprison- court late can be sentenced to purposes of the sum- has reached with being ment without told in advance that he mary contempt aught that doctrine. For contempt, being charged with criminal appears in on this sub- jurisprudence our without dis- ject, presented issue is no constitutional lawyer. cuss his case with his all. dispels reading Sykes Sykes A I and II twenty-first go into the We should not any notion that either this court or our century, even the last decade contemplated procedure federal brethren twentieth, rule which has as clinging to a such as that utilized the trial court or fairness as this little basis reason Nevertheless, I find the case. one of this nation’s one.7 the words of minority logically rule unsound and incom- greatest jurists, revolting to have no “it is patible Supreme precedent. then that it a rule of law better reason for would abandon it once and for all. Henry IV.” in the time of was laid down The Law noted, O.W. The Path Of explicitly Holmes, As I have this court first sitting en banc I, appropriate At an adopted “minority” Sykes rule in equals presence” implic- of this “absence indicating opinion in that Bolingbroke8 comparative join should itly done so in Saul and Shorter. why provided explanation subsequent history of the Hunt cases. The court 6. For the great emergency so that non-sum- demonstrates the deficiencies of there was which itself kind, inadequate mary proceedings to deal summary proceedings cases of this see situation, ques- opinion pp. nor did it address per 91-92 & note with this curiam entirety tion whether the misconduct its 16. by the court. observable noted, I, justi- Sykes as we have this court 7. Henry minority name before he seized adoption rule on the 8.This was IV's fied its cousin, judges questionable theory required throne in fashion from to enable that it was many attorneys Richard II. who took on too deal historical oblivion.9 SCHLANK, Appellant,

Billie R. WILLIAMS, et

Katherine A.

al., Appellees.

No. 88-1295. Appeals.

District of Columbia Court

Argued Dec.

Decided March event, (D.C.1989),we declined any Corp., rant A.2d 31 I would extend "absence is doctrine, presence" late-arriving the context of the which to extend another outmoded lawyer layman. Since precedent that of unschooled Supreme was inconsistent lawyer training, consequences legal a having cases, analogous but to which this federal proceed without counsel without Ryan, M.A.P.v. committed under court was charge, enough, being told while unfair of the devastating argu (D.C.1971), though it A.2d 310 layman they are to a are not as persuasive ably distinc to articulate a difficult Allis, in his such as Swisher. See still teens the doctrine to which tion between the situation (9th Cir.), cert. we applied and the circumstances U.S. Recently, 50 L.Ed.2d 185 extend it. asked & v. Shama Restau in Hercules Co.

Case Details

Case Name: Swisher v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Mar 22, 1990

Citation: 572 A.2d 85

Docket Number: 88-498

Court Abbreviation: D.C.