People v. Kurz

35 Mich. App. 643
CourtMichigan Court of Appeals
DecidedAugust 30, 1971
DocketDocket No. 9417
StatusPublished
Cited by1 cases

This text of 35 Mich. App. 643 (People v. Kurz) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kurz, 35 Mich. App. 643 (Mich. Ct. App. 1971).

Opinion

Levin, J.

The appellant, Walter A. Kurz, is a lawyer. He represented Joseph John Bates who, following a jury trial, was convicted of driving while under the influence of intoxicating liquor, second offense.1

After the trial, Kurz was cited for contempt of court based on his conduct during the trial. The contempt charges were tried before the same judge who presided at the trial. One hundred seven separate acts of contempt were charged, and Kurz was convicted of 106 of the charges. He was sentenced to serve 152 days and 7 hours in jail and was fined $9,550. We reverse.

[646]*646Bates was convicted and sentenced in June 1969. The order to show cause citing Kurz for contempt was issued nine months later, on March 26, 1970.

The order to show cause recites that the prosecutor and Kurz estimated that Bates’ trial would require 2 days and that in actuality it took 6-1/2 days and 3 nights to try. The recitals continue: “During the first three days of trial counsel made numerous statements, interrupted questioning by opposing counsel, interrupted the court while speaking, made approximately 125 objections, required that the jury be excused approximately 14 times over and beyond regular excusáis for recesses and adjournments and otherwise hindered the trial”. On the morning of the fourth day of the trial the court, “having determined certain rules were essential to the conduct of the trial, set the following such rules to govern the conduct of counsel during the trial and warned counsel that any counsel who violated any rule would be in contempt of court.

“1. Neither counsel shall interrupt the judge while the judge is speaking;

“2. No motions will be made in the presence of the jury, except to strike testimony or to instruct the jury to disregard or for other good cause;

“3. No motion for mistrial shall be made in the presence of the jury;

“4. No facetious question will be asked or facetious remark will be made;

“5. Neither counsel shall address each other, or the jury except, of course, upon argument at the conclusion of the case;

“6. Any counsel who wishes to object to testimony shall state that he objects and then state succinctly the reason for the objection. Grounds for the objection must be stated with perspicuity.

[647]*647“7. After the court has ruled on any matter, neither counsel shall argue that same matter or again object to the same matter. Of course, this does not prevent counsel from objecting to subsequent matters which are raised after the court’s ruling. In such an event, counsel should indicate a continuing objection;

“8. No objection to any question shall be made after the answer has been given;

“9. No counsel shall object to any question until the question has been completely finished — stated.”

Excerpts from the transcript tending to support the 107 separate charges were set forth in the order to show cause. See Appendix for the text of about half of the excerpts.2

Substantially all the charges grow out of the manner in which Kurz voiced objections to questions propounded by the prosecutor. It is claimed that on 17 occasions Kurz stated his objection too early— before the question was fully stated; on another 17 occasions he stated his objection too late — after an answer had been given; that on 15 occasions he did not state the objection succinctly and with [648]*648perspicuity; on 43 occasions he made an unnecessary objection either because he had obtained or was entitled to a continuing objection, or he reargued an objection upon which the court had already ruled; on 11 occasions, primarily in the course of stating or arguing objections, he interrupted the judge; on one occasion during the course of registering an objection he addressed opposing counsel; and that on 2 occasions in responding to the court he made a facetious remark.

While there was a stenographic “record and, as well, an electronic recording of the Bates trial proceedings, the contempt citation was tried on a 53-page transcript consisting solely of the excerpts set forth in the order to show cause. The relative brevity of this transcript can be appreciated when it is considered that with 107 citations the excerpt for each charge averaged one-half page of transcript.

The hearing on the order to show cause was set for April 9, 1970. Before the hearing, Kurz moved to disqualify the judge and for a continuance, and asked to be furnished with the electronic recording of the Bates trial proceedings and a transcript of the stenographic record of the trial. The motions were noticed for Friday, April 3. The court, on its own initiative, adjourned the motions until the return date set for the hearing on the order to show cause. On the return day, April 9, the motions were denied.3

[649]*649During the hearing Kurz addressed the judge as follows:

“Proceeding in the heat of a courtroom battle, I did not willfully or intentionally at any time in any way whatsoever intend to commit the contemptuous act to the court, I did not intentionally or willfully wish to express any disobedience to the court’s orders. I did not intentionally or willfully intend to express any opinions or any arguments meant as a direct attack on the court or its authority of any kind. * * #

I had, more or less, been made aware of certain rules laid down in various cases, that it is very difficult sometimes to distinguish where the art of advocacy leaves off and the element of contempt attaches. I just simply at any point of time did not intentionally or willfully engage in any activity or any utterances which were meant or intended as a willful attack or intended act towards the dignity or authority or the decorum of the court.”

The judge responded:

“Mr. Kurz, having sat through the entire trial, I find this very difficult, in a sense, to believe. I don’t know whether they were intentional or not. I do know that the effect of them, though, was as I mentioned. Whether they were intentional or not I think only you could tell us. I make no comment or judgment on that at all.”

The judge then took up each of the separate charges. On each separate charge Kurz stood mute and, when asked if there was anything he would like to say, responded through his lawyer: “Not [650]*650without the benefit of the full transcript”. He was then found guilty on the charge and the court proceeded to take up the next charge.

After the court had gone through the 107 separate charges and convicted Kurz of 106, sentence was imposed as follows: No punishment was imposed for the first conviction. For the second conviction Kurz was fined $5 and the fine was increased $5 for each succeeding conviction, e.g., $10, $15, $20, through the 20th conviction. A fine of $100 was imposed for the 21st conviction and for each of the remaining convictions. In addition, a sentence of one- hour was imposed for conviction No. 22 and an additional hour for each additional conviction, e.g., 2 hours, 3 hours, 4 hours.

In that manner the court set fines aggregating $9,550 and a jail sentence of 3655 hours, or 152 days and 7 hours. Service of the sentence has been stayed pending this appeal.

The convictions and sentences are challenged on a number of grounds.

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Related

People v. Kurz
192 N.W.2d 594 (Michigan Court of Appeals, 1971)

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Bluebook (online)
35 Mich. App. 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kurz-michctapp-1971.