Swisher v. United States

572 A.2d 85, 1990 D.C. App. LEXIS 61, 1990 WL 31937

• Court: District of Columbia Court of Appeals
• Decided: March 22, 1990
• Docket: 88-498
• Status: Published

Opinions

PER CURIAM:

Appellant Mickey W. Swisher first learned that he was charged with criminal contempt of court when the trial judge found him guilty of that offense. He was convicted and sentenced to imprisonment without having had the opportunity to discuss his case with his attorney. Concluding that Swisher’s substantial rights were violated, we reverse his conviction.

I

Swisher, a service station attendant who was then nineteen years of age, was arrested on March 4, 1988 and charged with unlawful possession of PCP and marijuana, in violation of D.C.Code § 33 — 541(d) (1988). It appears from the court file that he was one of three occupants of an automobile which had been stopped by police for a traffic infraction. Drugs and alleged paraphernalia were recovered from the vehicle, and criminal informations were filed against all three men.

A status hearing was held on March 29, 1988, and trial was scheduled for May 4, 1988 at 9:00 a.m. At 8:20 a.m. on the trial date, however, a female friend of Swisher telephoned the Pretrial Services Agency (PSA) and stated that Swisher would be unable to appear on that date because he was in West Virginia on family business, the exact nature of which she did not know. The PSA reported the contact to the trial judge, who issued a bench warrant for Swisher’s arrest.

The following day, at about 1:00 p.m., Swisher came to the PSA office and requested assistance in resolving the matter. He explained that his grandfather had died the previous week and that he had been obliged to return to West Virginia because of “family problems.” The PSA reported these events to the judge, and Swisher was directed to the courtroom.

The judge called the case, apparently for the purpose of resolving what should be done about the outstanding bench warrant.¹ By coincidence, Christian Camen-isch, Esq., Swisher’s counsel in the underlying drug case, was also representing one Maurice K. Gaston, the individual who was then on trial before the same judge. Mr. Camenisch was thus able to note his appearance on Swisher’s behalf when the latter’s case was called.

The judge stated for the record that a bench warrant had been issued. For the benefit of counsel, he summarized the two PSA memoranda. He stated, and the prosecutor confirmed, that the prosecution had been ready for trial the previous day, and that the government had incurred the expense of bringing its witnesses to court. The judge invited Mr. Camenisch to comment on Swisher’s behalf.

Mr. Camenisch told the judge that he had not had the opportunity to speak with Mr. Swisher or to “delve into the circumstances of [his] absence.” He noted, however, that both he and the judge had been in trial in the Gaston case on the previous day, that Swisher’s case could not have gone to trial, and that there was therefore no “real prejudice” to the government.² He asked the judge to quash the bench warrant and to set a new trial date. The prosecutor agreed with defense counsel’s proposal, but argued that Swisher’s failure to appear demonstrated that he was unreliable,³ and asked that the defendant be “held” pending trial.

Although it is readily apparent from the foregoing recitation that both counsel were treating the proceeding as one relating to the resolution of the bench warrant and possible modification of- conditions of release, the case suddenly took on a different dimension:

THE COURT: All right, Mr. Swisher, is there anything you want to say? Bear in mind, of course, that anything you say can be used against you.

MR. SWISHER: Yes, sir. I had to go home, because my grandfather died and it was an expense to you, and it was a great expense to me to lose my grandfather. And, I wanted to go home and see him one last time before he was put in the ground.

THE COURT: Well, unfortunately sir, when—

MR. SWISHER: And, I was not able to make it because my family was just falling apart. And, I just had to be there. I tried to get hold of Mr. Camen-isch here, and his line’s been busy, and I had my friends down here try, and I’ve tried from home, and the line’s been busy until 12:00 at night.

THE COURT: Unfortunately sir, when you have a criminal case pending, it has to take priority over everything else.

I believe that the defendant’s non-appearance, [was] willful contempt of court in the presence of the court, and accordingly we will add Count D, Contempt of Court. And I find the Defendant guilty of Contempt of Court.

I’ll hear from you, Mr. Camenisch, before I sentence him.

As we have noted at the outset, the adjudication was the first indication from anyone that a contempt proceeding was being held.

Following the judge’s finding, Mr. Cam-enisch again referred to his client’s grandfather’s funeral, and stated that “I don’t think he was acting in any intentionally contemptuous way.” The judge responded that

I’ve already found that he was.[⁴] I’m talking about sentencing at this point. When the judge invited counsel to allocute with respect to the sentence, Mr. Camen-isch once again protested the procedure which had been utilized:

MR. CAMENISCH: Well, your Honor, I feel that I’ve been put at a great disadvantage. You’re calling this case, and then the Court finding my client guilty, when I really haven’t even had a chance to advise him not to speak up and all that, and I just think it’s not .right, and I feel like, rather than go forward like that, he should say nothing under the circumstances, and I just think that I’ve been put in a very bad position here.

THE COURT: All right. So, you have nothing to say?

MR. CAMENISCH: Well, Your Honor, I really didn’t have an opportunity to consult with him prior to calling this case.

THE COURT: That, of course, is also another risk — [⁵]

Mr. Camenisch then briefly allocuted on Swisher’s behalf. Invited by the judge to speak for the government, the prosecutor deferred to the discretion of the court. Asked if he wished to say anything, Swisher stated

No, I’m very sorry that I missed it, and I will never do it again.

The judge sentenced him to five days in jail.⁶ This appeal followed.⁷

II

On appeal, Swisher contends that his conviction should be reversed for evidentiary insufficiency and procedural error. We conclude that the evidence was sufficient but that the process was fatally flawed.

A. Evidentiary insufficiency.

We first address Swisher’s contention that the evidence against him was insufficient to support his conviction. If that position were correct, retrial would be barred as a matter of law by the Double Jeopardy Clause. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); see generally Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988).

The elements of criminal contempt are (1) willful disobedience (2) of a court order (3) causing an obstruction of the orderly administration of justice. In re Thompson, 454 A.2d 1324, 1326 (D.C.1982) (per curiam). The offense requires both a contemptuous act and a wrongful state of mind. In re Gorfkle, 444 A.2d 934, 939-40 (D.C.1982).

Swisher apparently challenges the sufficiency of the proof of the first and third elements. He claims that his conduct does not establish “a willful attempt to show disrespect for the court or to disrupt the proceedings.” See Warrick v. United States, 528 A.2d 438, 443-44 (D.C.1987).⁸ Swisher acknowledged in open court, however, that he failed to appear because “I wanted to go home and see [my grandfather] one last time before he was put in the ground.” He essentially admitted that he made a deliberate choice.⁹ Viewing the evidence, as we must, in the light most favorable to the government, Irick v. United States, 565 A.2d 26, 30 (D.C.1989), and recognizing that the trial judge’s findings cannot be disturbed unless they are shown to be without evidentiary support or plainly wrong, Browner v. District of Columbia, 549 A.2d 1107, 1114 (D.C.1988), we conclude that there was ample evidence of willfulness.¹⁰ A defendant’s unexcused failure to appear for trial on the scheduled date causes an obstruction of the orderly administration of justice. See In re Thompson, supra, 454 A.2d at 1327.¹¹

This court has described the use of criminal contempt sanctions as “a prescribed method of punishing a defendant who fails to appear for trial.” Campbell v. United States, 295 A.2d 498, 500 n. 8 (D.C.1972). The actual disruption in the present case may not have been great,¹² but the judge did not err in finding it sufficient to support Swisher’s conviction for criminal contempt.

Although Swisher has not so characterized it, his position on the merits parallels the “defense of necessity.” Translated into legal terminology, his statement to the court suggested that he failed to come to court because “the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from [his] breach of the law.” Griffin v. United States, 447 A.2d 776, 777 (D.C.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). We need not determine whether any family emergency, e.g., the resuscitation of a spouse or a child who suffered a heart attack, see In re Lamson, 468 F.2d 551, 552 (1st Cir.1972) (per curiam), would be sufficient to sustain the necessity defense, which is surely one of last resort. We hold only that the desire to attend the funeral of one’s grandfather, however understandable and even praiseworthy it may be, does not, without more, constitute “necessity.” ¹³ Cf. United States v. Anonymous, 215 F.Supp. 111, 113-14 (E.D.Tenn.1963) (attorney held in criminal contempt when he failed to appear for trial because there was a fire at a building in which he owned an interest; “great burden” on attorney caused by fire considered in mitigation only).

B. Procedural issues.

Swisher claims that the summary proceedings against him were lacking in basic fairness. We find substantial merit in his contention.

Super. Ct.Crim.R. 42(a), which governs the prosecution of summary contempts, provides as follows:

SUMMARY DISPOSITION. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

Swisher argues that this rule has no application to the present circumstances, thereby raising the question whether a person who was found guilty of criminal contempt for being in West Virginia when he was supposed to be in the courtroom in Washington, D.C., committed the alleged offense in the “actual presence of the court” within the meaning of Rule 42(a).

This issue has most frequently arisen in the context of criminal contempt proceedings against attorneys who have failed to appear in court at the time prescribed. Most of the courts in other jurisdictions which have been confronted with this question have concluded that this type of contempt has not been committed in the presence of the court and should not be dealt with summarily because, although the judge can determine by personal observation that the contemnor is not present, he or she cannot know without receiving additional information from sources outside the courtroom whether the contemnor’s absence was willful, negligent or unavoidable. See, e.g., In re Lamson, supra, 468 F.2d at 552-53;¹⁴ Annotation: Attorney’s failure to attend, court, or tardiness, as contempt, 13 A.L.R.4th 122, 159-75 (1982 & Supp.1989). In the District of Columbia, however, the attorney’s absence is deemed to have occurred in the judge’s presence and, with some substantial limitations discussed at pp. 91-92, infra, summary contempt proceedings in such cases have been sustained. See, e.g., In re Gratehouse, 415 A.2d 1388, 1391 n. 4 (D.C.1980) (per curiam ); In re Rosen, 315 A.2d 151, 152-53 (D.C.) (per curiam), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974).¹⁵ Since it has also been held that in a summary proceeding for contempt committed in the presence of the court, the contemnor has no right to notice of the charges, see Ex parte Terry, 128 U.S. 289, 306-07, 9 S.Ct. 77, 80, 32 L.Ed. 405 (1888), or to representation by counsel, In re Ellis, 264 A.2d 300, 305 (D.C.1970), the government argues that the trial judge’s conduct of the proceedings in the present case was entirely appropriate.

We recognize, however, that certain kinds of contemptuous acts are susceptible to more summary treatment than others. The classic summary contempt cases, in which the courts have dispensed even with otherwise basic rights such as notice of the charges and representation by counsel, have involved disruptive conduct in the courtroom which the judge has personally witnessed from beginning to end. See, e.g., Ex parte Terry, supra (assault on marshal in the presence of the court); Ellis, supra (litigant insulted the judge, shouted, and banged his fist). All of the relevant events under such circumstances having occurred within the judge’s sight and hearing, there is little, if anything, that notice of the charges or representation by counsel could reasonably be expected to accomplish. Moreover, where there has been a disturbance in the courtroom, speedy punishment may be necessary in order to achieve summary vindication of the court’s dignity and authority. Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965); see also In re Oliver, 333 U.S. 257, 274, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948); Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925). Rights otherwise available to criminal defendants need not be honored in such cases because the contemnor’s conduct has posed such an open threat to the orderly procedure of the court, and such a flagrant defiance of the person and presence of the judge that, were it not instantly suppressed and punished, demoralization of the court’s authority would follow. Cooke, supra, 267 U.S. at 536, 45 S.Ct. at 394.

Neither of these special circumstances— that the judge saw and heard everything and that immediate action is imperative— applies where the contempt proceeding is against an absent lawyer or witness or juror or defendant. The difference between the two kinds of cases has been recognized in the jurisdictions which follow the minority “absence occurs in the presence of the court” rule, including the District of Columbia. In sustaining this court’s adoption of that minority rule, the United States Court of Appeals for this Circuit stressed that the trial judge had proceeded by order to show cause and hearing, and held that such a procedure (which is surely distinguishable from one which contemplates no hearing at all, as in the courtroom disruption cases) provides adequate protection of the attorney’s rights. Sykes v. United States, 144 U.S.App.D.C. 53, 54-55, 444 F.2d 928, 930-31 (1971) (per curiam). “One who is tardy or does not appear is not necessarily to be dealt with in summary fashion.” In re Brown, 320 A.2d 92, 94 (D.C.1974) (emphasis added). In In re Nesbitt, 313 A.2d 576, 578 (D.C.1973), this court questioned the appropriateness of proceeding by summary contempt pursuant to Rule 42(a) where “the issue of contempt for tardiness involves, by way of excuse, matters outside the presence of the court.” (Citations and internal quotation marks omitted.)

In In re Hunt, 402 A.2d 834 (D.C.1979) (Hunt II), this court, having previously affirmed a summary criminal contempt adjudication of an attorney who had been fined $10.00 for appearing late for trial,¹⁶ held that the trial judge committed reversible error by denying the attorney's subsequent motion to vacate judgment and refusing to consider as “newly discovered evidence” defense material presented in support of that motion which the attorney was unable to submit at the time of his original adjudication because of the summary character of the initial proceedings. The practical effect of Hunt II was to alleviate substantially the severity and rig- or of the summary process in the “late attorney” context, for the trial judge was ultimately required to consider evidence not immediately available to the contemnor. Moreover, other courts which subscribe to the minority rule have also recognized that even in summary contempt proceedings, the accused attorney should ordinarily be informed of the charge and given an opportunity to speak to it before guilt is adjudged. See, e.g., In re Logan, 52 N.J. 475, 477, 246 A.2d 441, 442 (1968) (per curiam ).¹⁷

Although none of these cases is precisely on all fours with this one, we think a fair reading of them suggests that, in general, they stand for the proposition that resort to the summary contempt remedy in absent contemnor situations should not be automatic. When there are facts which bear on guilt or innocence, or on the degree of culpability, which the judge cannot ascertain through his or her own senses, the contemnor must be afforded a reasonable opportunity to explain his absence and, if found guilty, to present facts in mitigation. To this end, certain basic rights must be respected unless there is an emergency so extreme as to render this impracticable. We hold that in summary proceedings based on failure to appear in court, the accused is entitled, at least, to notice that he is being charged with criminal contempt, to the meaningful assistance of counsel (which includes a chance to tell the attorney the facts and to secure his or her advice),¹⁸ and to a reasonable opportunity to present a defense.

Swisher was denied these rights. What began as a routine proceeding to resolve a bench warrant was not identified to the participants as a contempt proceeding until adjudication. Although the judge had been advised that Swisher had not had the opportunity to consult with counsel, the case proceeded not only to the determination of guilt but also to sentencing. As soon as he realized that a criminal contempt proceeding was in process, Swisher’s attorney made it plain that he was in no position to proceed.¹⁹ Swisher was thus found guilty and sentenced before his counsel had talked to him about the case.

Lack of notice and of an opportunity to consult with counsel is intrinsically prejudicial,²⁰ and we think that Swisher was substantially prejudiced here. If the judge’s intention to proceed by contempt had been disclosed, and if counsel had been given even a relatively brief opportunity to talk with his client, he could have determined whether there was any potential defense to the charge.²¹ Armed with that knowledge, he could have advised his client on the most fundamental decision which must be made in any criminal case, namely, whether to contest the charge or to concede a violation but request leniency and bring to the court’s attention any extenuating circumstances. If Swisher decided to deny his guilt, counsel would have been in a position to advise his client as to whether he should testify (or otherwise address the court) or remain silent. If the client elected to testify, his attorney could have elicited any information favorable to his cause, and would no doubt have counseled tact rather than confrontation.²²

An opportunity to consult with his counsel would also have stood Swisher in good stead in relation to the sentencing phase of this very brief proceeding. Reluctant to speak at all on Swisher’s behalf without heaving been able to prepare in advance, Mr. Camenisch did state that he “believed” that Swisher had no prior criminal record. Not having interviewed Swisher, however, counsel was precluded from marshalling relevant facts about his client’s background, family, education, employment record, good character, good deeds, or potential for rehabilitation. For his own part, Swisher, having received no advice from his attorney as to what he might say on his own behalf in regard to punishment, said very little. Although Swisher was only nineteen years old at the time, had no prior criminal record, and was gainfully employed, the judge gave no apparent consideration to ordering work release or a “weekend” type of sentence which might protect Swisher’s job.²³

There were no pressing circumstances that appeared to compel immediate disposition of the contempt case. Even if Swisher’s absence from court on the trial date had created an emergency warranting an immediate remedy, then that emergency would have passed by the time that the proceeding which proved to be a contempt hearing began a day and a half later. See, e.g., United States v. Meyer, 149 U.S.App.D.C. 212, 222-23, 462 F.2d 827, 837-38 (1972), discussing restrictions on judge’s right to proceed summarily after the emergency has passed. There were several alternatives available to the judge short of summary adjudication of contempt. If Swisher was thought to present a risk of flight in spite of his attempts to contact the court and his surrender to the Pretrial Services Agency, his conditions of release could have been modified accordingly. D.C.Code § 23-1329(a) (1989). The government could have charged him with willful failure to appear, in violation of § 23-1327(a); indeed, that is a common sanction where criminal defendants fail to come to court as required. If a conventional prosecution initiated by the government was thought to be an insufficiently swift means to bring Swisher to justice, the judge could have issued an order requiring him to show cause why he should not be held in criminal contempt, and set the hearing for a few days later. If the court were of the opinion that these alternatives or a combination of them were unnecessarily time-consuming, notification to the parties that criminal contempt proceedings on a charge of willful disobedience of a court order were about to commence, followed by a continuance even for half an hour to enable Swisher to talk to his lawyer, would have provided the rudiments of a fair hearing.²⁴

Under any of these courses of action, Swisher’s due process rights would have received more attention. Consequently, proceeding on the spot, without providing Swisher with notice of the charges or with an opportunity to consult counsel, was not “necessary to maintain an orderly system of justice.” In re Gorfkle, supra, 444 A.2d at 939 (quoting Hunt I, supra, 367 A.2d at 158); see also Jones v. United States, 560 A.2d 513, 516-17 (D.C.1989); cf. Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11 (1954).

To compel a defendant to proceed when his attorney has not had the opportunity to prepare a defense has been held to be reversible error. Brown v. District of Columbia, 252 A.2d 513, 516 (D.C.1969); see also Thompson v. Thompson, 559 A.2d 311, 315 (D.C.1989). In principle, this case is quite similar to Brown. Accordingly, the judgment appealed from is reversed and the case is remanded to the trial court for any further proceedings which may be deemed appropriate.²⁵

So ordered.

1 . The government asserts in its brief on appeal that after Swisher arrived in the courtroom, the judge "conducted a hearing to determine whether appellant should be held in contempt of court." In fact, the purpose of the hearing was never so identified, except retroactively when Swisher was found guilty of criminal contempt.

2 . The Gaston case was instituted in January 1987. It was thus more than a year older than the Swisher case, and would undoubtedly have been given trial priority over Swisher even if appellant had been present.

3 . Mr. Camenisch responded to this contention by stating that he thought his client was regularly employed.

4 . Reaffirming his adjudication, the judge said:

He made a choice, he wanted to go see his grandfather instead of coming to court. I can sympathize with that, but it’s a willful failure, and when you get entangled in the criminal justice system, allegedly, I assume for Mr. Swisher, driving into D.C. to take advantage of those open air drug markets, and provide that market, making this city a shambles, then you have to be willing to abide by the consequences of being required to show up in court on time.

5 . The judge was apparently alluding to the "risk” described in his remarks quoted in footnote 4.

6 . The proceedings concluded as follows:

MR. SWISHER: Is there any way I can consult with—

MR. CAMENISCH: He has a job, your Hon- or, that he had to report to.

THE COURT: I’m sorry, but once again, the Court comes first. Five days sentence_

******

MR. CAMENISCH: Your Honor, will the Court reconsider the imposing of that sentence. I don't think Mr. Swisher has ever been involved with the law before. And, I don’t think that—

THE COURT: Listen, it’s done. Thank you. And, I think you’re going to see more of it from the judges of this court for people who come into the district from the outside.

7 .On September 1, 1988, Judge Wolf issued a written "Criminal Contempt Ruling” in conformity with Super.Ct.Crim.R. 42(a). After essentially restating his oral fact findings, the judge wrote as follows:

The court is not helpless when a criminal defendant does not appear at the beginning of a trial as directed; the proper exercise of its contempt power, after an appropriate factual inquiry, is the prescribed method of punishing such a defendant. Campbell v. United States, 295 A.2d 498 (D.C.1972). A defendant who conceded in open court that he knowingly violated a condition of his release in effect confessed to contemptuous conduct. Matter of Wiggins, 359 A.2d 579 (D.C.1976). The elements of criminal contempt are: "(1) Willful disobedience; (2) of a court order; ... (3) causing an obstruction of the orderly administration of justice.” In Re Thompson, 454 A.2d 1324, 1326 (D.C.1982). The court finds that all three elements of contempt were proved beyond a reasonable doubt by Mr. Swisher’s conduct.

8 . At the status hearing, Swisher signed a Notice to Return to Court on the trial date. The notice advised him that "failure to appear promptly may result in the issuance of a warrant for your arrest." He was also presumably advised, in conformity with uniform Superior Court practice, of the penalties for failure to appear pursuant to the Bail Reform Act, D.C.Code § 23-1327 (1989). There is no indication in 'the record, however, that he was ordered, in so many words, to appear on May 4, 1988.

Swisher has not raised, either in the trial court or on appeal, the question whether there was any court order for him to disobey. Judge Wolf found, at least implicitly, that the Notice to Return to Court was a court order, and we are disposed neither to raise the issue sua sponte nor to conclude that such a finding was "plain error.” Cf. D.D. v. M.T., 550 A.2d 37, 48-49 (D.C.1988).

9 . Willfulness may also properly be inferred from Swisher’s failure to appear for trial after having been warned that his attendance was required. See Raymond v. United States, 396 A.2d 975, 976-77 (D.C.1979) (in prosecution under Bail Reform Act, proof that defendant received notice of his trial and failed to appear supports permissible statutory inference of willfulness); In re Schaeffer, 370 A.2d 1362, 1364 (D.C.1977) (per curiam) (willfulness inferred from attorney’s failure to return to courtroom).

10 . Swisher’s communication to the court, through a friend, that he would not be present, as well as his prompt surrender, may both be worthy of consideration in mitigation of the offense, but cannot alter the fact that he absented himself without the prior consent of the court.

11 . The intrinsic mischief occasioned by the unanticipated absence of a principal actor in the proceedings has especially serious consequences in multi-defendant cases such as the one in which Swisher was scheduled for trial. The defendant’s failure to appear not only frustrates the schedules of the judge and his staff, the prosecutor, and his own counsel, but also inconveniences his codefendants and their attorneys. Plea offers in such cases are often "wired,” i.e., contingent on all defendants accepting the government’s offer, and a single defendant’s failure to appear may stymie several guilty pleas.

In Swisher’s case, one codefendant had entered a guilty plea on the trial date. The record does not disclose if the plea offer to that individual had been “unwired” or if his plea was to the information. If Swisher had been present and prepared to plead — and his counsel indicated that a plea was a strong possibility — then the two pleas could have been taken together, a procedure which would have conserved the time and resources of all concerned.

12 . The trial judge indicated that, even though he was in trial in the Gaston case, he might have been able to "certify" Swisher's trial to another judge. This would, in fact, have been impossible, because Mr. Camenisch was counsel both for Gaston and for Swisher and could not defend both men before different judges at the same time.

13 . If a timely motion for a continuance had been made, the judge might appropriately have granted it for humanitarian reasons.

14 . As the court said in Lamson, supra, 468 F.2d at 552:

The failure to be present in court at the appointed time is obvious to the court. Yet, while the absence, if it can be called “conduct", is in the presence of the court in a semantic sense, the presence of the offender is in the court's absence. As to the reasons for the presence elsewhere, they may be good ones, depending on witnesses — the security officer, some of the demonstrators or bystanders, the heart attack victim, or building maintenance personnel — or on other information which the tardy attorney could produce.

These are the kinds of events which impress upon us that a failure to appear on time may often only be explained by witnesses who may not be immediately available or by more than three hours preparation by the offender. An opportunity to summon the witnesses or obtain material necessary to the defense seems only fair.

15 . We assume, arguendo, that the case law holding that the contemnor’s absence occurs in the presence of the court applies to criminal defendants as well as to attorneys. See In re Kirk, 413 A.2d 928, 930 (D.C.1980) (per curiam ) (affirming criminal contempt convictions of witnesses, entered after show cause hearing, for failure to comply with subpoena; court cited “absent attorney” cases as analogous precedent); Aron v. Huttoe, 258 So.2d 272, 274 (Fla.Dist.Ct.App.) (summary contempt proceedings sus-tamed against witness who failed to respond to subpoena; court recognized, however, that "a logical argument has been advanced by appellant that this contempt was not committed in the actual presence of the court”), cert. dismissed per curiam, 265 So.2d 699 (Fla.1972). But cf. In re Allis, 531 F.2d 1391, 1392-93 (9th Cir.) (opportunity to confer with counsel for ten minutes sufficient for attorney who arrived in court late, although it would have been inadequate for juror or witness), cert. denied, 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976); Kandel v. State, 252 Md. 668, 672, 250 A.2d 853, 855 (1969) (”[s]ince lateness of an attorney is misbehavior of an officer of the court, the guilty one may be punished summarily under [Maryland statute so providing]” (emphasis added)).

16 . In re Hunt, 367 A.2d 155 (D.C.1976) (per curiam) (Hunt I), cert. denied, 434 U.S. 817, 98 S.Ct. 54, 54 L.Ed.2d 72 (1977). See also In re Hunt, 434 A.2d 440 (D.C.1981) (Hunt III), in which, following the remand in Hunt II, the trial judge’s refusal to vacate the adjudication was affirmed with one judge dissenting.

17 . Later, in In re Yengo, 84 N.J. 111, 417 A.2d 533 (1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981), the Supreme Court of New Jersey held that the mere unexplained absence of an attorney is a "hybrid” between "direct” and "indirect” contempt and that “the better practice is to proceed on order to show cause even where the contempt is in the face of the court.... That procedure comports more closely with concepts of procedural due process and eliminates unseemly confrontations between the court and the contemnor.” Id. at 121, 417 A.2d at 540-41 (citation omitted).

18 .The right to consult with counsel is obviously more crucial in this case than it is where the contemnor is an attorney. See In re Allis, supra, 531 F.2d at 1393 (ten minutes notice of charges to attorney, so that he may consult with counsel and prepare a defense, held sufficient under the circumstances though obviously inadequate for witness who fails to respond to a subpoena or juror who fails to respond to a summons).

19 . If the judge had announced when the case was called that he was addressing the issue of criminal contempt, rather than the resolution of a bench warrant, counsel would surely have requested at least a few minutes to consult with his client. Although counsel did not use the word "continuance" or “recess," he in effect requested relief of that sort, and the judge in effect denied it.

20 . Here, as in Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932), “[n]o attempt was made to investigate. No opportunity to do so was given_ Under the circumstances disclosed, we hold that [Swisher] was not accorded the right of counsel in any substantial sense. To decide otherwise would simply be to ignore actualities.”

21 . Swisher told the judge that “my family was just falling apart.” Further inquiry was surely called for to determine whether, for example, this "falling apart” involved a serious illness, and what if any service Swisher could or did perform for any ill member of his family.

22 . In his written order, the judge discerned a "cavalier" attitude on Swisher’s part, perhaps because of the latter’s remark that “if it’s an expense to you it was a great expense to me in losing my grandfather.” Given a minimal opportunity to prepare his client, counsel could surely have advised a more diplomatic approach.

23 .The judge sentenced Swisher without a pre-sentence investigation, although the provisions of Super.Ct.Crim.R. 32(b)(1), which details the circumstances under which the judge may dispense with such an investigation, had not been satisfied. Swisher has not raised the lack of a presentence investigation in the trial court or on appeal, and we need not and do not decide whether Rule 32(a) applies in summary contempt cases. We allude to the lack of a presen-tence investigation only to illustrate how matters which would ordinarily be addressed in depth at the time of sentencing can slip through the cracks when the court acts in summary fashion, to the detriment of a measured and thoughtful discussion of the various sentencing alternatives.

24 . If the judge had proceeded in this manner, and if counsel had ascertained upon consultation with his client that essential witnesses or other evidence could not be, produced on the spot, he could have brought these facts to the court’s attention and applied for a continuance. In the present case, not having had the opportunity to talk to Swisher, counsel was in no position to advise the judge of any such circumstances.

25 . Swisher was sentenced to imprisonment for five days. Both the trial court and this court denied his motions for a stay pending appeal, and Swisher served his sentence almost two years ago. Only the collateral consequences of his conviction remain at issue. See Fitzgerald v. United States, 472 A.2d 52, 53-54 (D.C.1984). Under the circumstances, we invite the trial court’s attention to the disposition in Thompson, supra, 559 A.2d at 315 n. 8, in which this court held it to be “just in the circumstances” to prohibit reprosecution where the defendant had completed serving a fifteen-day contempt sentence which had been imposed almost five years earlier. We do not, however, absolutely proscribe reinstitution of contempt proceedings, and think it appropriate to leave the decision whether further action against Swisher is warranted to the discretion of the trial court.