*1 v. HAYES, TAYLOR JUDGE 26, Argued June 73-473. March No. 1974 Decided *2 Robert Allen argued petitioner. Sedler the cause for With him on the briefs were Doris Peterson Morton and Stavis.
Henry Triplett A. argued the cause and filed a brief for respondent.*
Me. opinion delivered the Justice White Court. question in this validity case concerns the of a
criminal contempt judgment against petitioner entered by reason of occurring certain events in the course of a criminal trial in the courts of the Commonwealth of Kentucky. Petitioner was retained counsel for Narvel Tinsley, Negro, along who with his brother Michael was urging by *Briefs of amici curiae were reversal filed Burke Mar- shall, Friedman, Leon and Norman Dorsen for the Association of the City York; Haddad, by Jr., Bar of the of New Frank E. Leib- Joe G. son, Assn.; by and Ed for P. Jackson Bar Louisville James Lar- son, Kinoy, Arthur Victor Lawyers and Rabinowitz the National Guild; L. Melvin for the American Civil Liberties Wulf Union. Ac- police of two officers. the murders charged with the “murders Court Kentucky Appeals, cording . . . in Louisville considerable sensation created some overly was abundant.” coverage newspaper . . . respondent Trial before 2d 494 S. W. completed 18, 1971, and was judge began on October trial on October during trial, turbulent
On nine different occasions hearing jury most out of the respondent, chambers, informed was often charge immediately first contempt of court. The sentence was at the warning imposed reduced to and no charge- in that or other instance. Petitioner any time *3 all, of the permitted respond most, was to but not to charges.1
At and the conclusion of the trial on October 29 after a guilty returned, respondent, verdict had been presence jury, concerning peti- made a statement Refusing petitioner’s request tioner’s trial conduct. to “I respond you” declaring and have counts, on nine respondent proceeded impose jail to on term each totaling count almost four one-half years: days and on count, days the the days first on second, 90 on the six months third, on five, six, counts four, seven, year and one each on counts eight nine, “all 1When for the petitioner sixth time was informed that he was contempt, sought in he reply to and was informed could do so at the next recess. Nothing appears more in respect the with record to episode. On the occasion, petitioner seventh undertook to respond respondent but chambers, any left the further discus charge sion of this apparently ordered excluded from the record by respondent. Petitioner was denied right respond to when he was informed of eighth charge of contempt. As far as the shows, record request there was neither a respond to nor denial of response in connection with the ninth contempt charge. days later, A few run consecutive.”2 to respondent his practicing from law was also barred Circuit Criminal Branch of the Jefferson division of the Court. proceedings on complete transcript of following is the charges against 29, 1971, respect with to the
October petitioner: Taylor, something up with Mr. the Court has take
“The Court: you sir, at this time. Taylor: right here, Well, Judge. I’ll be
“Mr. you. Now, “The Court: I’ve for two sit here and listen to weeks you’re here, going right to listen me. Stand sir. you put display
“For two weeks I’ve ever I’ve seen the worst attorney years my years seen an two of this and 15 quoted any practicing you law. You’ve couldn’t do it other way. system completely upon, par- You know our court is based ticularly law, criminal the Doctrine of Eeasonable Doubt. That’s exactly means, upon what it It reason. doesn’t mean that it’s based deceit; trickery; it upon mean that based doesn’t it’s it doesn’t upon it’s planned mean based confusion. really really I your you’re is,
“Sometimes wonder what if motive justice your client, you interested in the or if have some ulterior you’re motive, Taylor Tinsley. if interested Dan or Narvel “It’s a something shame that this court has to do that the Bar Association of this long ago. State should have done a time lawyer concerned,
“As far as you’re jury I not. want this; I hear want community this, law of this to hear students you’re rule, you’re not the exception rule.- to the Taylor: you. (Interrupting) “Mr. Thank *4 “The Court: I want them your to understand that actions should be their way not actions because is not the that a court con- way ducted. is not This an officer of a court should conduct itself. Taylor: respond
“Mr. I you, would to sir- “The Court: (Interrupting) You’re not responding me to on anything. Taylor:
“Mr. (Interrupting) yes, Oh I will. Yes, you’re
“The not, Court: either. Taylor:
“Mr. Yes, I will. 2 is
[Footnote continued on ¶. ^98] 492 March pending, on appeal petitioner’s
While containing judgment a corrected entered 1972, respondent charges of con- the nine described which a “certificate” having been charge the first as eliminated tempt3 but One- is Count The sentence on “The Court: you gag me- (Interrupting) intend to Taylor: Unless “Mr. do (Interposing) that- I’ll “The Court: you- lawyers My respond will Taylor: (Interposing) “Mr. that, (Interposing) do sir. I’ll “The Court: you, lawyers respond Taylor: My sir. will “Mr. you’ll some more quiet, You be will be “The Court: —there
contempts- No, you heard I said. Taylor: (Interrupting) what “Mr. Count, days in you counts. I have nine First “The Court: days jail; days Count, in jail; Count, jail; Third Second in jail; in jail; Count, in Fifth months Count, Fourth six months six Count, jail; Count, jail; six months in Sixth six months Seventh jail, year jail; Count, year in Eighth Count, one one all to Ninth run consecutive. away.
“Take him Taylor: you
“Mr. We will answer in court. you.” glad App. “The I’d be Court: to see 28-29. charges were nine of described in certificate as follows:
“Contempt Taylor, questioning juror, Mr. prospective a day Dire, ignored on the second repeatedly Voir Court’s order not a questioning questions to continue certain line of and to ask his jury whole, of the disrespect prospective as a He evidenced utter jurors (T. 335-347). E.
“Contempt objection 2. The court sustained the Commonwealth prior use of Hogan statement to cross examine Officer and not go escape Tinsley. into the Taylor Narvel Mr. repeatedly and completely ignored (T. ruling 1071-1080). the court’s E. “Contempt During playing tape recording of the voice White, Taylor witness David wrote Mr. on a blackboard. After the playing tape it was ordered that the blackboard be removed Taylor from and Mr. was advised the court that he could it use in his final summation jury. to the Taylor Mr. *5 reduced the sentence each warning to a and
reduced The cor- jail. counts to six months of the two last the to whether sentences rected was silent as judgment consecutively. or concurrently were to run by and manner when disrespectful the court his tone voice was your (T. E. replied, certainly keep mind, Honor’ ‘I’ll 1355). Tinsley,
“Contempt by During Mr. cross-examination Narvel 4- Schroering, Taylor recess, a interrupted Mr. for and moved by court, disrespectful the to the overruled and then became most and refused to take his table as ordered. court seat counsel’s “Contempt Complete disrespect by Taylor and utter Mr. questioning Foley, (sic) attorney Legal of Mr. Irvin and Advisor disobeyed Department continually to the Louisville Police when he ruling regarding press the court’s had conference which (sic). Taylor ruled on unadmissible Mr. the court of dis- accused allowing persons admittance of during black in the courtroom examination presence of this witness made a statement in the jury inferring of the only police white officers could enter the always courtroom. It has been the rule of this court there interruption during will no during examination of a witness closing by arguments people coming going into and from the courtroom, which rule (T. 1950-1955). was known Taylor, to Mr. E. “Contempt 6. The Taylor, witness Jesse Officer, a Louisville Police by read a witness, Ruling statement by David A White. was made spoke the court that the itself, statement had been introduced in evidence and could not be Taylor, commented on Officer who merely Taylor took the disregard statement. Mr. continued to ruling by continually court’s reading order and parts state- (T. 2008-2016). ment out of context E. “Contempt Taylor examining 7. Mr. Brown, Mr. Norbert again press referred to a previously conference that the court had go him ordered not to into. He also waved his arms at the witness derogatory in a indicating manner the witness was not truthful and showing utter ruling (T. 2030-2032). court’s E. “Contempt 8. The Taylor court directed Mr. to call his next wit- Garrett, He ness. called Lt. Department. Louisville Police After stand, was sworn witness and took the deputy Sheriff advised Taylor’s the court searched, that Mr. aide was everyone not as else *6 holding that affirmed, Appeals Kentucky Court of The contempt charged. every and of each guilty was petitioner delaying, deliberate, actions “were petitioner’s view, In its did in fact create such which disruptive tactics planned or permitted if to con- he, in the court that atmosphere an in performer to be the star appeared have tinue, would at three-ring 2d, circus.” 494 W. ring of a the center . “innumerable . . Petitioner had committed acts 740. the court well his for as clearly which reflected . .” and system of Commonwealth . judicial as and “overbearing, contemptuous, obnoxiously been had Id., objections in . . .” at persistent questions his . Appeals peti- 741. The Court of also concluded that any “personal tioner had not launched attack” on the had neither conducted him- judge judge trial that “ ” seeking self as an 'activist combat’ nor had become so in personally disqualified embroiled that was to sit on the judgment charges although his contempt, prior to entering judgment contempt at the remarks Id., conclusion of “inappropriate.” the trial were at 744^745. Appeals
The Court of further ruled that because judgment amended did not “direct that the sentences, amended, consecutively as be served . . they . must be Id., served concurrently.” 746. Thus, at penalty “[t]he actually imposed on Taylor Daniel six months [was] jail,” and his conviction and sentence without a jury trial upon entering Taylor had been the courtroom. Mr. ordered the deputy Taylor to his aide. begin search The court ordered Mr. examination, his which he refused to do until he was cited for con- tempt (T. 2068-2069). in the court’s chamber E. “Contempt Taylor repeatedly 9. question Mr. asked the same Floyd
witness Miller improper. the court had held He was disrespectful referring also in his tone of when voice certain police police (T. 2169-2172).” officer as ‘this nice officer’ E. App. 24-26. Id., permissible. constitutionally
were deemed Kentucky Appeals ruled, however, The Court it discipline attorneys authority had exclusive disbar Kentucky rule in that, any event, since per- not a suspension practice had been from was punishment missible contempt. criminal order prohibiting practicing from the Jefferson Court, Circuit Criminal Second Division, Branch, granted therefore reversed. We certiorari limited to *7 specified 414 U. issues, (1973). S. 1063
I
Petitioner
any charge
contempt
contends that
court,
Quite
without exception,
jury.
must be tried to a
to the contrary, however, our cases
con
petty
hold that
tempt
petty
like other
may
criminal offenses
tried
be
a jury
without
and
contempt
petty
court is
of
a
fense
imposed
when the penalty actually
does not exceed
six months or
longer
a
penalty has not been
au
expressly
thorized by statute.
v. Schnackenberg,
II We are persuaded petitioner’s more by contention that he was entitled to more hearing of a and notice than he received prior to final conviction and In sentence. each instance during the trial respondent when considered petitioner to be in petitioner contempt, was informed of that and, fact in most instances, had opportunity to re- spond to charge at that time. It quite true, as the Kentucky Court of Appeals held, that con- “[t]he tempt citations and the sentences coming at the end of the trial were not and could not have been surprise Taylor, upon because each occasion and immediately fol- lowing charged of act contempt the court informed
497 contempt of court.” Taylor that he was at that time imposed no 494 at 741-742. But sentence was 2d, S. W. any appear and it does not to us during trial, until after adjudication final was entered the verdict returned. It was then that the court proceeded petitioner’s to describe and characterize various trial to find him during contemptuous, guilty acts as immediately nine acts of and to him contempt, sentence for each of those acts. plain
It is also from record when petitioner sought respond the Kentucky Appeals to what Court of referred to as the charge trial court’s “declaration of a Taylor against upon based judge’s observations” dur- ing respondent trial,4 “[yjou’re informed him that re- not sponding to me anything” and even indicated pe- might titioner if gagged he insisted on defending himself.5 proceeded The trial then without further formality impose totaling consecutive sentences al- four years county most and one-half jail and to bar forever from before the court practicing which the case at issue had been tried. procedure
This
does not square with the Due Process
Clause
the Fourteenth Amendment. We are not con-
cerned here with the trial judge’s
power,
purpose
of maintaining order in
punish
the courtroom, to
summar-
ily and without notice or hearing contemptuous conduct
committed in his presence and
parte
him. Ex
observed
Terry, U. S. 289
justification
usual
States,
necessity, see
v. United
U.
Offutt
(1954), is
nearly
cogent
not
so
when final adjudication
and sentence are postponed until after trial.6 Our de-
*9
737,
(1973).
494
2d
744
W.
cisions establish permitted at all. be trial if it is to during imposed be ways offender where circumstances, particularly proper In trial, may post- it a client lawyer representing is a Sacher v. proceedings. poned until the conclusion Penn- Mayberry 1 v. States, (1952); cf. U. S. United 343 But Sacher noted 455, (1971). 463 400 sylvania, U. S. re- rightly, is always, “[s]ummary punishment 8. have ... 343 U. garded S., with disfavor .” “[W]e charge reasonable notice again stated time and before punish- to be heard in defense opportunity and an jurispru- in our imposed system is are 'basic ment ” Leslie, 496, (1972), 404 502 Groppi dence.’ v. U. S. Oliver, (1948). In Even quoting 257, re U. S. contempt where summary punishment imposed for during normally given “the contemnor has been an trial, opportunity speak his own in the nature of behalf right (and Groppi Leslie, supra, allocution.” v. at 504 cases cited therein).7 hand,
On the punishment other where conviction and are delayed, “it is much more argue that difficult to action without notice hearing or of any kind is necessary to preserve order and enable proceed with [the its court] business.” As Ibid. we noted in Groppi, the contem- nors in the Sacher case were “given an opportunity to speak” and judge the “trial would, doubt[,] no have modi- fied his action their had statements proved persuasive.” Id., at 506, Groppi and n. counsels that before an attorney adjudicated is finally in contempt and sentenced process, due assumption that the everything that the saw court open went inon required court justify exception; [is] but the need for penal immediate dignity vindication of the of the created it.” Cooke States, v. United U. S. 7 Groppi dealt with of a legislative state body, and the contempt action taken days was not until several later without notice opportunity Groppi to be heard.
499 trial, he should have rea- during after trial for conduct charges specific opportunity sonable notice of the say, to be in his own behalf. This is not to how- heard appropriate. Usually, the ever, that a full-scale trial is judge’s eyes, events have occurred before the and a own reporter’s transcript is available. But contemnor might urge, example, at least that the behavior at issue acceptable was not but the conduct of an at- torney representing his client; or, might present mat- in mitigation ters or attempt otherwise to make amends Leslie, with the court. Cf. v. Groppi supra, 503, 506 at n. 11.8 Advisory The American Bar on Association Committee
Judge’s recommended, Function has inter alia: charges opportunity “Notice of be to heard. imposing any punishment judge
“Before contempt, for criminal give charges should the offender notice of the a and at least sum- mary opportunity argument guilt adduce evidence or relevant to punishment. “Commentary “Although authority contempts there is can in-court
punished
charges
opportunity
heard,
without notice of
or an
to be
parte Terry,
Ex
(1888),
procedure
These Bloom contempt power. posed for abuse potential States, v. United Sacher 202; Illinois, S., 391 U. v. due *11 fundamental of provision S., at 343 U. our his- with accords contemnors for protections process no have we fairness. While elementary of notions toric rigid within judges of discretion imprison the desire “to States, S., at 348 U. v. United rules,” mechanical Offutt and time “the additional unpersuaded that we remain 15, the handicap seriously will involved . . possibly . expense Illinois, Bloom v. courts.” functioning of the effective in cannot be measured process Due supra, 208-209. at the accused cents. For dollars and and hours or minutes valuable sentence, “liberty his is facing jail contemnor the Four- protection the of be seen as within and must some calls for Amendment. Its termination teenth Brewer, Morrissey orderly process, however informal.” v. (1972). 471, 482 408 U. S. process due minimum requirements
Because these case, the con- petitioner this law were not extended judgment must be set aside.9 tempt 9 Rehnquist’s My Court has dissent insists that Brother teaching States, (1952), rejected 1 of Sacher v. United 343 U. S. posttrial contempt proceeding, that need not afford in a panoply procedures the full such as "the issuance of contemnor complaint answer, holding hearings, taking process, evi service of dence, listening arguments, awaiting briefs, findings, submission of goes Id., (emphasis and all conventional court with a trial.” at added). today But all we have decided that a is en contemnor elementary process protections titled to the due of “reasonable notice specific charges opportunity be heard his own be half,” supra, 499, petitioner at neither of which received. Nowhere Ibid.; do we appropriate.” intimate that “a full-scale trial is see 8, supra. Moreover, justifications may also n. whatever sometimes imposition summary punishment during necessitate immediate trial “to integrity maintain order courtroom and the of the trial ” process justice,’ in the face of an ‘actual Codispoti obstruction of v. Pennsylvania, post, 513, “[rjeasons permitting straightway
III if is to be tried are also convinced that We agree again, by respondent. he not be tried We should petitioner’s Appeals with the Court of Kentucky personal conduct did not constitute the kind of attack respondent or lack of that, regardless of his reaction it, "[un]likely calm would to maintain that detach- ment necessary adjudication.” Mayberry for fair v. Pennsylvania, 400 at 465. S.,U.
But contemptuous conduct, though personal short of attack, may provoke judge still a trial embroil him so he cannot controversy nice, “hold the balance clear and true . between State and the accused . .” . Ohio, Tumey v. making U. In judgment, ultimate inquiry only must be not *12 whether there was actual bias respondent’s on but part, also whether there was “such a ap- likelihood of bias an pearance of bias judge that was unable to hold the balance between vindicating the interests of the court and the Ungar interests of the Sarafite, accused.” v. 376 U. 575, (1964). “Such a stringent may rule some- times bar trial by judges who have no actual bias and who would do their very weigh best justice the scales of equally between contending parties,” process but due requires law no In Murchison, less. re U. S. With these in considerations mind, we have examined the record in case, and it appears to respond- us that ent did become embroiled in a running controversy with petitioner. as Moreover, the trial progressed, there was mounting display of an personal unfavorable attitude toward petitioner, his ability, and his motives, sufficiently summary exercise power are not compelling reasons for or encour aging its immediate exercise.” Sacher v. United States, supra, at 9-10. finally ad- been have issue should that
so judge. another judicated by petitioner cautioned respondent trial
Early in the you give and added that “if a show” “putting on against I him as well sit on might he'll a mile. inch, him an take peti- On another occasion when 31, 40. App. now.” his his was to defend purpose tioner asserted Id., 61. “I’m sure.” at not case, respondent replied, had months remarked that he five petitioner When wrapped case, respondent retorted that up “[b]e- Id., you lot more than that.” over, might fore it's have complained of re- hand, petitioner 98. the other at On “overbearing me, spondent’s regard contentiousness by phrase utterances,” both its asserted Id., prejudicing court was the trial of his at 60. case. Respondent was likewise said to “using be brute [the] power your saying petitioner damag- office” his ing Id., client. respondent at On another occasion, petitioner understood asserting that he, respondent, Id., rigged had the jury. at 85-86. respondent
That had strongly reacted to petitioner’s conduct throughout the 10-day clearly emerged trial the statement prior which he made to sentencing peti- tioner and which the of Appeals Court as characterized “inappropriate.” There he said put had “the worst display” had seen in many years at the lawyer far as a you’re concerned, Id., “[a]s not.” bar — 28. Furthermore, respondent denied petitioner *13 to opportunity any make statement at that time, threat- ened to him gag and forthwith sentenced him to almost four and years one-half in jail, not to mention later dis- barring him from practice further in his court. He also refused him grant bail pending appeal. We for assume purposes the of case this that each of the charged acts was contemptuous; a nevertheless, sentence of magnitude this reflects the extent which the respondent became per- States, v. United S., sonally Cf. 348 U. involved. Offutt at we con- record,
From our the have reading own of were on personal feelings present cluded that “marked “unseemly both sides” the marks of conduct Pennsylvania, Mayberry v. personal left stings,” [had] A been S., judge 400 U. at 464. fellow should have the purpose disposing substituted for finally peti- charges by respondent against made Sarafite, Ungar supra, tioner. Respondent relies v. impressed judge but we were with there the fact that the purport proceed “did not at the summarily during or conclusion trial, gave of the an but notice afforded opportunity hearing for a which was conducted dis- a passionately befitting judicial pro- and with decorum ceeding.” 376 U. 588.10 S.,
Nothing we have said here con- should be construed to done the type opinion of conduct described Kentucky of Appeals by Court and found that court to have been engaged by petitioner. Behavior of this nature has place no which, courtroom in a free society, is a forum the courteous and pursuit reasoned justice. of truth and Rehnquist’s dissent also asserts our decision Mr. Justice provides whereby judge the means “a can driven out of case
by any sufficiently counsel astute to read new-found constitu principles Mayberry Pennsylvania, tional enunciated and in v. [here Post, (1971)].” S.U. at 530. perhaps But this statement — dissenter’s our holding license—misconceives and undervalues import of expressly text, the Due Process As Clause. noted in the by equate Mayberry Pennsylvania. we no with means this case v. petitioner’s conduct, alone, requires It is not considered recusal case; rather, factor, critical as revealed the record us, respondent’s response before is the character of to misbehavior dissent, course, during may the trial. The course of view the differently, record but on that issue we are in unavoidable disagreement. *14 is Appeals Kentucky Court judgment further that court for is remanded to
reversed and case opinion. with this not inconsistent proceedings ordered.
So Douglas II III of the joins Parts Mr. Justice opinion. Court’s of Mr. dissenting opinion Rehnquist,
[For Justice post, p. see 523.] part. dissenting
Mr. Marshall, Justice join I II III opinion Court, Parts of the petitioner I I join but cannot in Part holding jury was not entitled to a trial. Petitioner was sum- marily contempt convicted sentenced to almost years prison. my four and one-half In view, this sentence the contempt charges marked against as rather than “petty” play “serious” and called into petitioner’s jury Amendment right Sixth trial.
The Court, however, relies the fact that trial judge subsequently realized his error and reduced the sentence to six months. The Court characterizes this as determination the State that “the is not so serious as to warrant more than a six-month sentence.” Ante, at In my view, judge’s trial reduc- tion petitioner’s sentence transparent was a effort to circumvent this Court’s Sixth Amendment decisions and to save his summary conviction of petitioner without the necessity of airing the charges before an impartial jury. hardly It petitioner’s coincidence that sentence was reduced to the maximum that our permit. decisions would
Today’s decision represents an extraordinarily rigid application and wooden of the six-month rule that Court has fashioned to determine when the Amend- Sixth *15 applicable. In right permitting ment obvious I think succeed, changes device to the Court nature of the six-month rule from a reasonable effort distinguish contempts between “serious” and “petty” arbitrary an into judges barrier behind which who wish protect summary contempt their without convictions their exposing charges jury may to the light harsh safely very hide. The fact that such a substantial con- tempt imposed, sentence was and then reduced to the be maximum, should warning six-month us that the process fairness of the which has received is suspect, charges involved here especially require the of a scrutiny jury trial. Statements opinion plurality v. Schnackenberg, 384 Cheff U. S. 373, 380 (1966), to contrary I notwithstanding, do not believe that petitioner could deprived of his Sixth Amendment right to jury trial, once it attached through the imposition of a substantial sentence, subsequent action of the trial court or appellate an reducing the sentence.