Sussman v. Commonwealth

374 N.E.2d 1195, 374 Mass. 692, 1978 Mass. LEXIS 890
CourtMassachusetts Supreme Judicial Court
DecidedMarch 22, 1978
StatusPublished
Cited by33 cases

This text of 374 N.E.2d 1195 (Sussman v. Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sussman v. Commonwealth, 374 N.E.2d 1195, 374 Mass. 692, 1978 Mass. LEXIS 890 (Mass. 1978).

Opinions

Liacos, J.

This petition for a writ of error attacks a summary judgment of criminal contempt entered in the Superi- or Court against the petitioner, an attorney with the Massachusetts Defenders Committee.1 The Commonwealth’s answer admitted all the essential facts alleged in the petition but denied the allegations that the petitioner had been unlawfully adjudged in contempt. The Commonwealth also filed a motion to dismiss the petition in so far as it contained allegations that the petitioner was not contumacious and that there was insufficient evidence to support the judge’s ruling. A single justice of this court reserved and reported the case without decision on the petition (including that portion of the transcript appended to the petition), the assignment of errors, the return of the Superior Court judge, and the Commonwealth’s answer and motion to dismiss.2 We reverse.

[694]*694The petitioner has been an attorney with the Massachusetts Defenders Committee since March, 1972. In September, 1975, he was appointed defense counsel in a jury trial of one Totton who had been indicted for rape and unnatural acts.3 After the alleged victim testified that she was married and was living in Maine, the petitioner asked early in his cross-examination, “And who do you live in Maine with?” The Commonwealth objected to the question and requested a bench conference. At the bench conference, the Commonwealth explained that its objection was on the grounds that it was irrelevant with whom the witness was now living and that, further, defense counsel knew that the witness was presently living with someone who was not her husband. This colloquy between the judge and the petitioner ensued:

The judge: “What is the relevance, Mr. Sussman?”
Counsel: “Your Honor, I think an issue in this case brought up by the government is the girl’s respectability.”
The judge: “You can’t do that by particular episodes, reputation only.”
Counsel: “I think the jury are entitled to know a little bit about the woman, your Honor, her credibility —”
The judge: “That is too vague a response. I will sustain the objection. I also take note that we have discretion to protect home addresses of rape victims or alleged rape victims. The objection is sustained.”4

The petitioner resumed his cross-examination of the witness with the question, “Mrs. Morin, you are now living [695]*695with your husband in Maine?” The witness answered, “No,” and on another objection from the Commonwealth the judge remarked, “I just ruled that out. Do you want a mistrial, Mr. Sussman?” The judge excluded the question, and instructed the jury to draw no inferences from it.

Without comment or argument, the petitioner abandoned this line of questioning, and asked several more questions involving the night of the alleged crime. The judge then interrupted the cross-examination to call a recess. Once the jury left the court room the judge announced that he was holding the petitioner in contempt and fining him $50 for his “deliberate flouting of the Court’s ruling” by asking the question which followed the bench conference. The petitioner sought to be heard on the matter but was able to give only a few words of explanation when the judge refused to let him be heard further in his defense.

In the assignment of errors accompanying his petition for a writ of error, the petitioner alleges that (1) his conduct did not constitute contempt of court, (2) there was insufficient evidence that he intentionally and deliberately disobeyed an order of the judge, (3) the failure to warn him that he was in danger of being held in contempt and to afford him an adequate opportunity to be heard deprived him of due process of law, and (4) the use of summary contempt proceedings in his case was improper.

1. We turn first to the petitioner’s claim that he was improperly held summarily in criminal contempt without warning or an adequate opportunity to defend himself.

(a) Trial judges have the inherent power to deal with contumacious conduct in the court room in order to preserve the dignity, order, and decorum of the proceedings. Illinois v. Allen, 397 U.S. 337, 343-344 (1970). Blankenburg v. Commonwealth, 260 Mass. 369, 373 (1927). See Opinion of the Justices, 314 Mass. 767, 783-784 (1943). Such power is not without limitation. Unless the contempt occurs in the presence of the judge and immediate punishment is needed to prevent “demoralization of the court’s authority,” In re Oliver, 333 U.S. 257, 275 (1948), or to enforce “lawful [696]*696orders essential to prevent a breakdown of the proceedings,” United States v. Wilson, 421 U.S. 309, 319 (1975), many of the due process safeguards available in criminal proceedings should apply to a contempt proceeding. See, e.g., Bloom v. Illinois, 391 U.S. 194 (1968); Garabedian v. Commonwealth, 336 Mass. 119, 124-125 (1957). Summary punishment for direct contempt “is warranted only when essential to the orderly administration of justice.” Opinion of the Justices, supra at 784.

Contumacious conduct may take many forms and may occur either within or without the presence of the judge. Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183 (1971). “No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.” Illinois v. Allen, supra at 343. The exercise of the summary power of contempt is “a delicate one and care is needed to avoid arbitrary or oppressive conclusions.” Bloom v. Illinois, supra at 202, quoting from Cooke v. United States, 267 U.S. 517, 539 (1925). Where that summary power is exercised, as here, against a member of the bar representing a client at trial, care must be taken that the right of the client to vigorous advocacy by the attorney is not chilled or defeated. In re Hollinan, 71 Cal. 2d 1179 (1969). Cf. Commonwealth v. Davis, 364 Mass. 555 (1974).

In a summary criminal contempt proceeding against an attorney based on his court room conduct, we must balance the trial judge’s obligation to protect the processes of orderly trial with the attorney’s obligation zealously to protect the client’s interest. In determining whether the power to punish summarily is justified, we must give due weight to the importance of vigorous advocacy. To do otherwise would chill the less courageous attorney in his efforts to represent his client effectively. A significant consequence of the use of the summary contempt power also involves the loss of due process requirements that ordinarily attach to contempt proceedings. Consequently “[t]he narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, [697]

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Bluebook (online)
374 N.E.2d 1195, 374 Mass. 692, 1978 Mass. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sussman-v-commonwealth-mass-1978.