Monday, September 17, 2007

Going to Jail for Refusing to "Be Still" in Court

Last year, when I was still in the Public Defenders Office, I was in court with a child who was being arraigned by the judge for a juvenile delinquency charge. The transcript below shows what happened, but first a little background.

As you can see, the judge very quickly began speaking directly to my client. What set her off was the moment that I pivoted in my chair (I'm serious!) and turned to tell him to behave himself since I was afraid, from the way she was talking to him and from his demeanor that he would either say something that would further draw the judge's ire or else say something incriminating about his case.

I haven't written about it for several reasons, not important for right now, and I've only shared the transcript with a few people since my former boss told me, at the time, to keep it quiet until he decided what to do. I don't think he ever did anything, but I could be wrong as I never asked him and quit that job two months ago to start my own practice.

Anyway, here's the transcript. What do you think?

(At 11:45 a.m., on January 26, 2006 in the Separate Juvenile Court for Douglas County, Nebraska, before the HONORABLE ELIZABETH G. CRNKOVICH, with Ms. Kristin Huber appearing on behalf of the State; with Mr. David Tarrell appearing on behalf of the minor child; and with the minor child Larry ****** being personally present with his mother, the following proceedings were had: )
THE COURT: What’s the matter, Larry?

LARRY ******: (nodded head)

Mrs. ******: She’s talking to you.

LARRY ******: I said nothing.

Mrs. *****: No you didn’t.

THE COURT: No, you didn’t. When I walked in, you’re very—it was – I don’t want to start anything, but I, I want you to know that, that you—you’ve got the judge you’ve have and—Mr. Tarrell, can I talk to your client for a moment?


THE COURT: Can I talk to him, please, for a minute?

MR. TARRELL: Yeah, I’m – you know, I’m—

THE COURT: Thank you.

MR. TARRELL: Judge, you know—

THE COURT: Thank you, I’m just going to visit with him for a second.

MR. TARRELL: Judge, you know what—

THE COURT: You- Just a moment. Mr. Tarrell, if you do not be still, I’ll find you in contempt.

MR. TARRELL: You can find me in contempt.

THE COURT: All right.

MR. TARRELL: I think it’s important that I talk to my client, okay, Judge.

THE COURT: All right. Just a moment. Just a moment.

MR. TARRELL: If you want me to play a role here, then let me play that role.

THE COURT: I’d like a sheriff please, thank you.

MR. TARRELL: I think it’s important for me—

THE COURT: Just a moment. If you open your mouth, I will incarcerate you; do you understand?

MR. TARRELL: I think I should get a chance.

THE COURT: All right. I’m finding you in contempt of court because you have refused to follow the court’s order to be still. I need a sheriff.

(Deputy sheriffs entered the courtroom at this time)

[Note: When the sheriffs came in, they were responding to a “panic button” so three of them ran into the courtroom, the first one holding a taser. When they saw a calm situation, with everyone sitting in their seats, they looked surprised. So I stood up in my seat, and stuck my hands out behind me so they could cuff me. I was thinking at the time that the judge probably wanted me to beg to not be arrested, so I was “calling her bluff” by doing this. When I did this, she slammed her hand down on the bench and screamed the next line at me. The rest of the conversation is a battle over the record, as she’s trying to make it seem as if I’m not complying with her orders and I’m trying to show everything that is going on]

THE COURT: Sir, Mr. Tarrell, sit down, sit down in your seat now.

MR. TARRELL: Your honor--

THE COURT: Sit down and be still, sit down. I have three deputies here. I am ordering you this last time to sit in that chair. Are you refusing?

MR. TARRELL: Your honor, I need to make a record.

THE COURT: Are you refusing? Yes or no?

MR. TARRELL: I will sit down in the chair, but I need to make a record.

THE COURT: Thank you. We have a clear record here.

MR. TARRELL: I don’t think we do.

THE COURT: You are in contempt of this court. I am ordering the deputies to take you back at this moment.

MR. TARRELL: Your honor, what I want to put on the record is—

THE COURT: Deputies, now.

MR. TARRELL: I think I should—

THE COURT: Stop, we do not have a record. I have ordered him to be removed.

MR. TARRELL: It doesn’t have to be this way.

THE COURT: I know that sir, it didn’t have to be this way.

MR. TARRELL: I’d like to try to play the role that you want me to play.

THE COURT: Go, go.

MR. TARRELL: Okay. I’m not going to be intimidated by you. I’m trying to do my job, the job you asked me to do. Now, please put that on the record. It’s not fair.
(MR. TARRELL exited the courtroom at this time)

THE DEPUTY: Would you like me to stay ,or?

THE COURT: No, I’m not having any difficulty with anybody else. I was just going to have a conversation with the young man.

THE DEPUTY: Sure. If you needed me to stay. I was just asking.

THE COURT: No, that’s fine. Just hang on to Mr. Tarrell for a moment, please.
Young man, I’d like to explain where I was beginning, but under the circumstances, it would not be appropriate because your lawyer doesn’t need to be with you. Let me say that you remain in good hands in terms of your legal representation. I think there was just clearly something else going on , and the court has a responsibility to maintain its authority, so I’m going to take a recess. You may be excused.
(a brief recess was taken and all parties exited the courtroom.)

[Note: they took me into the back room, where they book prisoners into jail. The deputies all treated me very well and it seemed like they hated to be doing what she told them to do. I was wearing an antique watch and one deputy offered to keep it safe for me as they told me to take it off for processing into jail. I had my shoes, tie, and watch off when the judge called the sheriff’s phone and told them to bring me back into the courtroom]

(the proceedings reconvened with only Mr. Tarrell present in the courtroom.)

THE COURT: Mr. Tarrell, are you ready to listen for just a moment?


THE COURT: All right. No. 1, my experience with you has been that you are a fine and dedicated lawyer who more than adequately represents your clients in juvenile court, and that impression has not changed.
No. 2, it matters not your opinion of the court in a professional way because the fact remains that I am the judge in this court and when I issue a command, it is required to follow that command.
Now, what you did not know is what I observed when I walked in, and I made an effort to relate to and communicate with your client merely to set the stage so that we could proceed. I do understand, because I also observed this, you were attempting to communicate with him, and I have no doubt that you were trying to tell him, hey, shape up, so that he would not then get himself in trouble with the court. However, the court had a handle on it, and the court was addressing your client. Everything that transpired from that point when I asked you to cease was contemptuous of the court and, I must suggest, of this particular Judge, and I will not tolerate it.
Now, you stated truly that it didn’t have to lead to this, and I agree with you. But you have to reflect that not once but at least six times in the course of ten minutes you refused to follow a directive of this court, either to be still and/or to sit down. I did not escalate this.
I do not wish to find you in contempt. I do not wish to incarcerate you. I do not wish to have this kind of exaggerated incident happen again . It doesn’t serve you, it doesn’t serve the bench, and it doesn’t serve the kids and the families.
Now, I took a recess. This may not be the time to address the two boys and their family. I am happy to continue it until after lunch when calm and reason can prevail or to another day. I will give you an opportunity to talk to your clients. I will allow you to leave freely and without the deputy. You may be excused.
(12: 06 p.m. adjournment accordingly)


Scott Greenfield said...

The rule of thumb is to obey first, appeal later. But what the transcript shows is not a matter of obeying, but rather an attorney doing the most basic function demanded of him, standing between his client and the court.

The judge has no authority to demand direct communication with your client beyond his plea, and your effort to be an attorney, and to make a record as such, were entirely appropriate.

But the most significant thing that comes from this transcript was your willingness to be held in contempt for doing your job. That fortitude reflects the finest character that one can have as a lawyer. Well done.

Anonymous said...

It's just good to see that this doesn't just happen here, in DC. I will say this, I notice that judges tend to throw attorneys in a cell, and then bring us back and talk about what great lawyers we are. It happened to me and a colleague of mine. When I was threatened to be "stepped back" I took off my jewelry and started walking to the back. It's important they know we can't be intimidated into letting them violate our clients rights by threatening to put us in jail. It's funny, but they all sound the same on trasncript . . . drunk with their power. Blessings! glad

Anonymous said...

I had this crap happen to me twice in the last couple months, but no contempt. Juvenile being bated by the bench or about to do something unhelpful. Me talking to them to get between judge and kid, judge acting like a jerk. It's led to consequences, etc.(long story). In any case, I'm glad to see your courage recorded forever on the record.

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