CODISPOTI v. PENNSYLVANIA

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Argument of John J. Dean

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-5615, Codispoti and others against Pennsylvania.

Mr. Dean, you may proceed whenever you’re ready.

Mr. John J. Dean: Thank you sir.

Mr. Chief Justice and may it please the Court.

Once again there is before this Court the relatively troublesome problem of the right of a defendant charged with direct criminal contempt to the Court to have a jury of his peers decide the issue of guilt or innocence.

Procedurally, this is case is relatively confused, however the issues are easily framed and quite clear.

Dominick Codispoti together with Herbert Langnes and Richard OJ Mayberry came on for trial in Pittsburgh, Pennsylvania back in November of 1966 on charges of prison breach and holding a hostage in a penal institution.

The trial lasted approximately six weeks and was marked by repeated altercations between the trial judge and between the defendants.

The defendants were found guilty.

They were given a 15 to 30 year sentence on one charge, a consecutive five to 10 sentence on other charge, and immediately at the end of the trial, the trial judge summoned them up some -- sentenced them anywhere from 11 to 22 years for the contempt of Court for the various statements that had been made in the presence of the Court.

They then appealed to the Pennsylvania Supreme Court and the Pennsylvania Supreme Court affirmed their conviction with several justices dissenting upon with theory of cruel and unusual punishment and since this case had antedated the Baldwin decision perhaps on a right to a jury trial.

Chief Justice Warren E. Burger: Do you think that the Courts under Illinois against Allen could have bound and gag these defendants as we said they could in Illinois against Allen, and then appoint counsel for them without regard to what they felt about counsel or appointing alternatively counsel as friends of the Court to act for them?

Mr. John J. Dean: Your Honor, Count Advisers as our Court called them in 1966 were appointed to help these people who were representing themselves as their own counsel.

Whether or not factually their disturbances were so tumultuous that would require an Allen type of gagging, I am not really prepared to say because I wasn’t there, I have the record there.

The record is in somewhat of a contention as to exactly what was the genesis of this confrontation between the defendants and the justice.

Chief Justice Warren E. Burger: Did you say it took six weeks to try this?

Mr. John J. Dean: I think it’s about six and a half weeks sir, yes.

The trial started in November of 1966 and concluded I think on about December the 12th of 1966 and I think there few days that the Court took of for procedural matters and other issues but essentially it was a six-week trial.

Justice William J. Brennan: Not the contempt trial?

Mr. John J. Dean: Not the contempt trial.

This was -- as I said the case was procedurally confused.

They were originally before the Court on a prison breach and holding hostage in a penal institution.

During that trial in 1966 --

Justice Potter Stewart: They committed several contempts?

Mr. John J. Dean: Contempts, these are the contempts that are currently before this Court.

Justice Potter Stewart: And we’re involved in this case only with the contempt trial?

Mr. John J. Dean: That’s right, only with the contempt trial.

What then happened was that they appealed to the Supreme Court of Pennsylvania which affirmed the conviction.

They petitioned this Court for a writ of certiorari which was granted.

This Court heard the case and in January of 1971, in an opinion by Mr. Justice Douglas remanded the case back to Pennsylvania for a public trial for the words that were used.

The case lay dormant --

Justice Potter Stewart: Now, is that only Mayberry?

Mr. John J. Dean: Mayberry was the only petitioner really before the Court directly, although he under the order seem to drag in Codispoti and Langnes with him.

What makes this case confusing now is Mayberry is no longer here, it’s just Langnes and Codispoti.

Justice Potter Stewart: And what happened to Mayberry?

Mr. John J. Dean: Mr. Mayberry chose not to go to this Court.

I can’t really offer you a rationale explanation of that action, but we now --

Justice William J. Brennan: Is he part of this case?

Mr. John J. Dean: No, he’s not Your Honor.

Justice William J. Brennan: But he was to the --

Justice Potter Stewart: He was the only party in the first case?

Mr. John J. Dean: Yes, Your Honor, in the first case that we had he was a sole party.

Justice William J. Brennan: No, what about this contempt proceeding, was he involved in this?

Mr. John J. Dean: Yes, Your Honor.

What then happened was when the case was remanded back in January of 1971, Judge Fiok who was the trial judge in 1966 against whom the original contempts were leveled, on December 7 of 1971, almost a year later issued a citation which was to be served by registered mail upon the three defendants scheduling a hearing, separate hearings for each of the defendants on anywhere from December 12 to December 17.

Mr. Mayberry went the trial first in front of Judge Vandervort, then Mr. Codispoti went to trial then Mr. Langnes went to trial.

They had separate individual trials or hearings depending on how you’re going to characterize it.

Justice William J. Brennan: And Mayberry was again convicted, wasn’t it?

Mr. John J. Dean: Mayberry was again adjudicated in contempt of Court and sentenced.

Justice William J. Brennan: A sentence comparable of the one than the first?

Mr. John J. Dean: No, Your Honor.

What occurred in that case was that by the expedient of giving a six-month sentence and by making them consecutive, Mayberry was again convicted on all of the charges that he was originally cited for by Judge Fiok and given 11 to 22 years sentence but Mr. Mayberry came up with something like a -- I think a four-year two-month sentence was his sentence.

Justice William J. Brennan: And he had -- didn’t seek review of that?

Mr. John J. Dean: He again appealed that sentences to the other ones to the Pennsylvania Supreme Court which this time affirmed pre curiam with judgment of contempt.

However, they -- one justice did dissent based upon the United States versus Seale rationale.

At that point, Codispoti and Langnes petitioned this Court for a writ of certiorari which was granted, which is why we are now up here in front of --

Justice William J. Brennan: But Mayberry will serve his four years and two months whatever it is?

Mr. John J. Dean: Evidently, Your Honor.

Justice William J. Brennan: In any event, he didn’t seek review of it?

Mr. John J. Dean: I was court-appointed counsel.

Mr. Mayberry has refused to talk to me during some of these proceedings so I am somewhat hard pressed to give you [Attempt to Laughter] a viable rationale --

Justice William J. Brennan: Well, he is not here?

Mr. John J. Dean: He is not in front of the Court.

At this time all we have are Codispoti and Langnes.

It is important perhaps to get into some of the facts of this particular case because of the arguments advanced, all of the trials of Mayberry, Codispoti, and Langnes were exactly similar.

In other words, I don’t think there was a substantial difference between one or the other.

Mr. Langnes had or Mr. Codispoti, excuse me, had come in and requested that counsel of his own choice be there to represent him.

The Court said but where is your counsel and the counsel was in Philadelphia and the Judge Vandervort said, “Well, he’s not in the courtroom now, you have a public defender, go proceed with him.”

Mr. Codispoti had said that he didn’t have any notice of this hearing really until he was brought in to Pittsburgh, Pennsylvania the morning of the trial that he had written the trial judge, Judge Fiok twice after the remand saying, what are you going to do or words to that effect and had received no reply.

Mr. Codispoti then requested a jury trial and in exactly similar language that the Court had used for Langnes and Mayberry said, the Court; I regard this issue Mr. Codispoti as an issue between the Court, not any particular judge but between the Court and you and I think the record should speak for the Court and you can speak for yourself and I am going to refuse your motion for jury trial.

Evidently, these people had some idea because they had known what had gone on before.

Mr. Codispoti then said, “Well, I would like some defense witnesses who were present during the original arbitration between Judge Fiok and myself, present to testify in my behalf.”

At the second hearing he was denied under these words the Court; I am going to refuse your motion to subpoena witnesses for the reasons that I told you.

I think that this is an issue between the Court and you and the record will speak for the Court and you and your counsel can speak for yourself.

And this is what happened in every single trial that came along.

So with those words, they were denied the right to a jury trial, they were denied the right to present defense witnesses, and they were entitled to speak for themselves, the record will speak for the Court.

They weren’t even permitted to call the trial judge who simply resided maybe 50 or 65 feet in a courtroom immediately adjacent to the courtroom where the trial was being held.

That brings us to the issue here.

They were found and adjudicated guilty on all of these contempts of Court.

On one of them, they received two months and on one of the contempts charges, they had received a sentence of six months.

Mr. Codispoti, for some reason that’s not quite apparent to me was sentenced to a year for one contempt and the Court has set out in the appendix had simply said we sentence to a year for Citation Number 5 or whatever it was.

Approximately, a month later the Court revised this “rough draft sentencing” to make it down into six months.

All of the sentences ran consecutively and therefore they were imprisoned approximately from three to -- two to three years, give or take a few months one way or the other.

And that brings us somewhat so through this route in order to a appreciate the issues here, the question of when there are -- when there is a single trial for a multiple contempts that have occurred during a particular trial, does the person’s right to a jury trial depend upon the aggregate sentence received, in this case several years, or does it depend upon the individual sentences received namely a six-month sentence which is aggregated into a three-year sentence.

We would suggest to this Court that when there is one single trial that the appropriate remedy is to look at the penalty imposed in the total because it makes little difference to the man who is sitting in jail to say, “Oh, you’re only in jail for six months but you’re in jail six months 10 times, than to say that you’re in jail for five years.”

It makes absolutely no difference to him in regards to the length of his incarceration.

Justice Harry A. Blackmun: Mr. Dean, the case that you’re (Inaudible) on Mayberry’s behalf we’re talking about 20 to 22 years then to, aren’t we?

Mr. John J. Dean: We’re talking about 11 to 22 years sir.

He was given a one to two-year sentence on each contempt.

Justice Harry A. Blackmun: And did the opinion devote itself at all to jury trials on this issue?

Mr. John J. Dean: No, Your Honor, not directly.

The concluding words of Mr. Justice Douglas were that it was to be remanded back for a public trial.

There was some discussion in the lower court whether the words public trial were to be interpreted as to mean jury trial.

The trial judge, Judge Vandervort decided that it did not mean a jury trial.

Justice Harry A. Blackmun: Do you think that there is any significance in our failure to discuss it at all?

Mr. John J. Dean: Your Honor, I think it would be presumptuous of me to try to impute the reasons for this Court as to why they did a particular action in a particular case.

I don’t think it does, to answer your question however.

I don’t think it has any direct significance because I don’t think the problem was essentially before this Court.

I would like to think that the words public trial meant a trial by jury and that the Court did not believe that all of a sudden these people were not to have a jury trial on these contempt charges.

Justice Harry A. Blackmun: Incidentally, were there any further contempts citations during the contempt trial?

Mr. John J. Dean: There was one Your Honor.

They were somewhat obstreperous and one of the defendants was given a chance to recant and he had cast impolite language upon the competency of Judge Fiok and the Judge asked him if you wanted to -- Judge Vandervort asked him if he wanted to recant as to the mental ability of Judge Fiok.

He did that by saying that he found somebody or perhaps lesser mental ability than Judge Fiok which was the present trial judge.

[Laughter Attempt] I don’t think that was really the recantation that they expected and he received another six months sentence for that slight outburst.

Justice Harry A. Blackmun: Well, I was looking at the material on page 48 and so forth of the record but there was no formal contempt to your man Codispoti?

Mr. John J. Dean: Yes Your Honor, he was sentenced to six, I believe it was Codispoti was sentenced six months or Langnes.

I am ruling out certain roots because the trials were so similar adverse occurred.

To my knowledge and I was present at those trials or most of those trials, only one of them was given an additional sentence.

You see Your Honor, in some sense as Mr. Codispoti said he had been up there, he’d requested very politely this and then it’s in page 5 of our brief have been denied his --

Chief Justice Warren E. Burger: Where does he make the request politely, on what page?

Mr. John J. Dean: You mean within here sir?

Are the request politely?

Chief Justice Warren E. Burger: Yes.

Mr. John J. Dean: Or you mean for jury trial and so forth?

Chief Justice Warren E. Burger: Well, any request that he made politely then?

Mr. John J. Dean: Alright, on page four of the brief, Your Honor are the -- I am sorry appendix 43, excuse me as where in the appendix it would be for Mr. Codispoti, he starts up here.

I would say it would be reasonably polite as a trial lawyer he had requested to the jury trial, but the Court said, “No, you can’t have it.”

He had then on around pages 45 approximately at the middle of the case said that according to Baldwin versus New York and Bloom versus Illinois and Duncan that he would like a jury trial and that he’d be given 14 years and he thinks that it was relatively serious crime at that particular point.

The Court said that it is just between you and the Court.

He then asked for witnesses and I assumed that that was a relatively polite request, appeared nothing out of the ordinary for me, at least nothing that would certainly shock the contents of the Court to disrupt these procedures.

What then did occur is we have an evaluation of the trial judge at least if he had been polite because on page 47 Mr. Codispoti states to the Court --

Chief Justice Warren E. Burger: Going back to 43 where you’ve said his conduct was polite, do you regard it as polite conduct when he suggests to the Court that the judge and the prison authorities are engaged in a conspiracy to railroad him, at the bottom of 43?

Mr. John J. Dean: Well, Your Honor, perhaps that -- alright I will not say that’s the most polite way.

Polite I meant in response to your question of failure to use obscene language.[Attempt to Laughter]

The language got to be a little bit probably make a stevedore blush after a while.

Chief Justice Warren E. Burger: Yes, we have observed that.

Mr. John J. Dean: But it any event, he does say here on page 47, there is one thing and this is Mr. Codispoti saying, there is one and this is after he has been denied this, “there’s one thing I want to make clear.

I came in this courtroom trying to be respectful right” and the trial judge answers, “You have been” which until that point Mr. Codispoti’s behavior will perhaps not within the standards of conduct one would expect from an attorney had not been the obstreperous that had attended these other litigations in Court.

And he says, “Now you that know I have 90 years and really another 10 to 20 years on top of a 90 years sentence, the words are to the effect is not going to certainly sway him one way or the other.

I think it’s important to understand --

Justice Thurgood Marshall: What part of 47, let’s skip it.

Mr. John J. Dean: Yes, sir.

That’s what I meant by saying that he was relatively polite in the beginning.

Unfortunately, that language did attend most of these proceedings.

This gentleman, I think has spent I would say consecutive 25 years in prison.

Perhaps, in the some instances it is strange.

This entire group has started out rebelling against prison authority.

Mayberry was incarcerated at age 12 for being a dependent neglected child and he has never escaped from the penal authority sentence since he has been engaged in one continuing arbitration after another.

In some sense in trying these people for contempt of Court case would almost be like beating a masochist with whips for punishment.

I mean, you bring these people into a courtroom and unfortunately you’re giving them an opportunity to go on and do things which they don’t really have.

Chief Justice Warren E. Burger: Well, are you suggesting we should -- that they should not have been brought into a courtroom?

Mr. John J. Dean: Your Honor, if it were my personal opinion, I feel they are very sick individuals.

I don’t think that their conduct is in anyway justifiable.

I don’t think it’s really the conduct that one will expect of a rational human being.

I think these people have an extreme problem.

I don’t think the legal system is really within the system of punishment and imprisonment the way to effectively handle these individuals --

Chief Justice Warren E. Burger: That was what I had in mind when I was reading pages 46, 47 and 48 in that area when I asked you whether the judge, if he cared to say would’ve been justified in binding and gagging them and then having a lawyer go ahead and conduct the proceedings on the basis of the prior record.

Mr. John J. Dean: In the Judge Vandervort proceedings what you’re talking about, I thought the original you’re talking about the Judge Fiok proceedings.

Chief Justice Warren E. Burger: No.

Mr. John J. Dean: I am sorry, Your Honor.

Eventually, the defendants were excluded from the courtroom in the course of these trials.

Chief Justice Warren E. Burger: Yes, did the judge have any other choice under Illinois against Allen?

Did the Court rely on Illinois against Allen by the way?

Mr. John J. Dean: Not to my direct knowledge Your Honor, no.

I am somewhat hazy on the rational that Judge Vandervort did use to determine whether or not he could exclude the defendants but effectively he did exclude them.

He had them placed in an ante room with a loudspeaker so they could hear what was going on for the entire proceedings.

But if I may, the situation that we would like to say, is that under situations such as this particular case that where people do receive a cumulative sentence that there are several strong policy reasons why this Court should demand a jury trial in an aggregated sentence.

Generally, the reasons for petty cases not being required to have a jury trial is maybe that they’re too small to really worry about that a couple of days, we can’t worry about judicial economy.

We have to make sure the Court schedule flows well.

But as I suggested to the Court earlier that has a relatively hollow ring to man incarcerated for three years.

There was also the problem that generally the power of the court to punish direct criminal contempts that occurred incur in front of it can be grounded in a prophylactic rule that at least it will begin to restore order to the courtroom in an abstractor situation because of the immediacy of punishment it’s the act that is deterrent to future conduct.

But in this particular case or in any case where the individual contempt problems are accumulated and then tried subsequent or termination of the main judicial proceeding, that prophylactic rational has no longer any viability.

Finally, the real problem in this is the problem of judicial abuse.

I was sitting down talking with some lawyers and they said it to me that ours is probably the only profession in the world where a trial lawyer can be put in jail for being late for work because if you come late in front of the Court, its well within the competency of the judge to put you in jail and there’s probably no other single profession where that penalty is imposed for being late.

Justice Byron R. White: Perhaps in the military.

Mr. John J. Dean: [Laughter Attempt] Perhaps in the military but often times do not in the military voluntarily, but at least you haven’t been in the past that was not a matter of choice being in there.

Justice Byron R. White: I have most of mine now.

Mr. John J. Dean: That’s probably true at this point at least most of them are.

However, would surrender that necessarily get out their discretion.

But the problem was that these people viewed Codispoti, Mayberry and Langnes have viewed the prison authorities as you stated, Mr. Chief Justice, are working together, being in a league against that what they want is some appearance of impartiality and as the Court can tell from the way that these proceedings went Codispoti’s frustration was obviously eminent in the language that we wrote from the appendix 47, that his problem was that he wanted a fair trial and exactly the same thing happened in everybody’s trial.

They asked for the jury, it's denied.

They asked for witnesses, it's denied.

They asked for counsel, it’s denied.

They are told to go to trial with appointed-counsel right now and at least I am not saying that a jury may have arrived at different determination than the trial judge did.

I don’t think that’s really a central issue here.

It’s not a question legitimately before this Court, but what the problem is that at least if there was a jury interposed between the judiciary who happens to be not only the prosecutor, not only the person who presented the charges, not only the trier of fact but also the imposer of sentence, to at least get a third party in there in the fact-finding position has a lot to recommend it.

And also, it’s very difficult to insulate one judge who was worked with another judge say for 20 years and say that he is going to be the completely impartial arbiter of dispenser of justice that our American legal system tends to look upon the judiciary.

Justice William H. Rehnquist: But didn’t you argue in Mayberry that that was what should be done there, send it back for trial before another judge?

Mr. John J. Dean: Yes, Your Honor, I did not argue Mayberry originally before this Court, but it is my understanding that was argued and that’s what was done.

It was sent back for a trial in front of another judge which was done in this particular case.

What I’m suggesting however, is that --

Chief Justice Warren E. Burger: You want another judge and the jury?

Mr. John J. Dean: Another judge and the jury is what we would like in this particular instance.

There is another question --

Justice Potter Stewart: Did Mayberry say anything about this issue?

Mr. John J. Dean: No.

Which Mayberry opinion you’re referring to?

Justice Potter Stewart: Well, I’m talking about the opinion in our Court, the Court opinion in our Court.

Mr. John J. Dean: Say anything about this particular --

Justice Potter Stewart: We remanded it for a trial before another judge -- judge other than the judge who tried the original criminal trial.

Mr. John J. Dean: Yes, Your Honor.

Justice Potter Stewart: And in a public trial, did it say anything at all about the --

Mr. John J. Dean: A jury trial?

Justice Potter Stewart: A jury trial.

Mr. John J. Dean: No, Your Honor.

Justice Potter Stewart: One way or the other?

Mr. John J. Dean: No, not to my knowledge, they did not say that there was --

Justice Potter Stewart: That was my recollection, I am sure.

Mr. John J. Dean: -- it was not to be a jury trial in this particular case.

Justice William J. Brennan: I take it.

Your view were to prevail, the other judge would be in a position if they had multiple counts in the citation.

Almost inevitably and having to have a jury trial because his only alternative would be then than there to decide that however many of the counts was other than guilty convictions, no sentence would be more than six months and all sentences would be concurrent?

Mr. John J. Dean: I am sorry -- I understand exact the exact thrust of your question.

Justice William J. Brennan: Well, I gather your -- basically you say because by imposing consecutive sentences on a number of counts, you get in excess of six months without a jury trial and constitutionally that can’t be done, is that correct?

Mr. John J. Dean: That’s right, Your Honor.

Justice William J. Brennan: And what I’m suggesting is when the other judge gets as he did here a citation with multiple accounts, but were 11 here or something?

Mr. John J. Dean: Yes well that it varied among the individual [Voice Overlap].

Justice William J. Brennan: Whatever the number was, isn’t his choice whether to have a jury trial going to require him then and there to decide that no I won’t give a jury trial because what I’ll do if I find guilty on any count is to impose not more than six months sentence on any count and make all sentences concurrent.

Mr. John J. Dean: Your Honor he can do that.

I don’t think that’s a rational that you’re going to encourage.

Justice William J. Brennan: But do you suggest he could not do that and deny a jury trial if he decided that’s what he was [Voice Overlap]

Mr. John J. Dean: Obviously, he could do that, Your Honor.

I mean there’s no two ways.

The problem with the six months aggregation rule is that you have one may be very serious contempt charge weighed with several minor charges and the Court instead of affording a jury trial in the series contempt charge can allocate the total sentence into six months pieces apart and thereby effectively deprive a person to jury trial.

I do not think the judiciary should be encouraged, the lower court judiciary to be encourage to deprive people from jury trials so that lift the views of consecutive [Voice Overlap].

Justice William J. Brennan: Well, what I am suggesting Mr. Dean, is I would think sitting as a trial judge but I have to say to myself when I get 10 to 11 counts in the citation, I better have a jury trial since obviously if he is guilty on any substantial number of them, six months may not be enough or say to myself well I would have a jury trial because I will decide now that however many counts I find them guilty, I’ll impose concurrent sentences none in excess of six months.

Mr. John J. Dean: I will just -- I would think that would be not acceptable approach to the problem.

Your Honor, if I can I like to reserve my time.

Chief Justice Warren E. Burger: And then I think we -- the subject came up in the Mayberry case that I have forgotten the answer, does Pennsylvania have a statute on obstruction of justice by way of conduct to this kind?

Mr. John J. Dean: Not of that particular time, no Your Honor.

There is no applicable statute governing back an obstruction of justice.

Chief Justice Warren E. Burger: Very well, Mr. Dean.

Mr. Eberhardt.

Mr. Eberhardt.

Argument of Robert L. Eberhardt

Mr. Robert L. Eberhardt: Mr. Chief Justice and may it please the Court.

First, I would like to thank the Court for the opportunity to argue this cause before the Court.

I specially, I too would like to first go into some of the factual background if I may.

The original contempts in this case occurred in 1966 during a six -- five or six week-trial on prison breach charges in which the three defendants Mayberry, Codispoti and Langnes committed, Mr. Mayberry committed 11 contemptuous acts by citation of the trial judge, Mr. Codispoti by citation five or six contempts and Mr. Langnes a total seven contempts.

As counsel for the petitioner has stated this was in 1966.

There was an appeal to the Pennsylvania Supreme Court and affirmance.

Mr. Mayberry chose a petition to this Court and the final decision by this Court in January of 1971.

We have set forth in our briefs the relevant, we think language from that decision as directions to the lower court and that language if I may quote, the Court states that, “Our conclusion is that the defendant to paraphrase --

Unknown Speaker: What page are you reading?

Mr. Robert L. Eberhardt: On my brief it’s on page 4 and 5 of the Commonwealth’s brief.

The Court through Mr. Justice Douglas states, “Our conclusion is that by reason of the due process clause of the Fourteenth Amendment a defendant in a criminal contempt proceeding must be given a public trial before a judge other than the one involved by the contempt nor citing in Re Oliver.

In the present case, that requirement can be satisfied only if the judgment of contempt is vacated so that on remand another judge not bearing the sting of at least slanderous remarks and having the impersonal authority of the law sits in judgment on the conduct of petitioner as shown by the record.”

I quote that because it’s very important to the actions that the judge -- the second judge took when this case was remanded to the Court of Common Police of Allegan County.

Justice Potter Stewart: Was that written after this Court’s decisions in Baldwin and Duncan and Bloom?

Mr. Robert L. Eberhardt: Yes.

Justice Potter Stewart: And against the person of those decisions --

Mr. Robert L. Eberhardt: Right and I would indicate to the Court that the reason I bring this out also is the fact that this case arose prior to many of decisions that are argued in our briefs and those decisions being the Baldwin decision and the Seale decision and other decisions that have come up regarding contempts.

The trial judge at the trial for the prison breach charges was acting only on -- the only decision that has come down from this Court to have been the Chef decision and the trial judge felt that he was acting fully within his powers in sentencing them on one to two years.

Now, that sentence was reversed by this Court, was vacated and the used sentence was imposed by another judge.

Now, the Judge Vandervort who imposed the six months sentences that no sentence ultimately was longer than six months against either of these two petitioners relied upon the prior decisions of this Court and I might add the Seale decision had not been decided at the time of the sentencing of these six-month sentences.

Now, on remand these sentences were imposed and as the Court has observed, the petitioners again engaged in the conduct which I would personally categorize as contemptuous and in the record on page 76 probably the most violent act was recorded when petitioner Langnes after being told by the trial judge that he was holding in contempt of Court for his language directed at the Court, threw a microphone at the Court, fortunately it did not hit the trial judge, but that indicates somewhat I think the type of defendant that is involved in this case, but that is not relevant.

Justice Thurgood Marshall: Assault, criminal with separate crime, why didn’t he try him for assault?

Mr. Robert L. Eberhardt: I don’t know the rational of the trial judge in this case.

He did not at that moment sentence him for that act of throwing a microphone.

He was sentencing him for a contempt for his language directed at the Court.

Continuing with the history of case, the case then went up for an appeal to the Pennsylvania Supreme Court and finally to this Court.

Several reasons were alleged in the petition for cert, but this Court limited its grant of -- to the petition to two questions.

The first being whether or not these sentences that were given to these petitioners should be aggregated in order to determine the right to a jury trial.

The basis for this is that all of these offenses are somewhat linked as single offense.

The commonwealth would point out some of the factual things in this record to show that there were several offenses involved here.

The trial as I indicated did occur over period of five to six weeks, the contempts occurred on various times during that six-week period and were not continuous, but they were occasional throughout this period.

Co-defendant Mayberry of course committed the 11 acts, but the petitioners here one committed six acts, the other committed seven acts.

They occurred over a period of six weeks.

It's the commonwealth’s position in this matter that they are identifiable as separate offenses and are not part of one continuous act and we have indicated in our briefs that we do not look upon the acts of these petitioners as Judge Cummings did in the Seale case where the defendant in that case based most of his contemptuous conduct on the fact that he was deprived of his right to counsel during the trial, the particular counsel that he wanted and that all of the actions of the defendant in the Seale case were premised upon that fact.

Here, the petitioners engaged in several different acts of contempt directed toward the Court and based on various things that they found to be objectionable during the trial.

I would point also to this Court’s prior opinion in the Mayberry case for a solution to the question of impartiality.

The trial judge in the original prison breach trial against whom the contempts were directed was found by this Court to be not capable of being impartial because of the acts of the defendant committed and aimed at the trial judge.

We have a proceeding on remand before another trial judge.

That trial judge cannot be said to have been affected by the decision, by the acts of the petitioners and although the transcript of the Mayberry proceedings are not before this Court.

In the hearing on the Mayberry contempts, Mr. Mayberry being very knowledgeable of the opinion written by this Court in his case informed the Court after he had committed another contemptuous act before Judge Vandervort that he motioned the judge, Judge Vandervort to now disqualify himself from sitting in judgment of Mr. Mayberry because he was now been the object of the scorn of Mr. Mayberry and therefore must now disqualify himself from hearing it.

Unknown Speaker: (Inaudible)

Mr. Robert L. Eberhardt: We could have a continuous operation with knowledgeable defendants knowing that by their own acts direct at the Court they could prejudice the Court in the eyes of an appellate court and require another hearing and perhaps hearings continuing and continuing on forever I would submit.

Chief Justice Warren E. Burger: The Mayberry opinion undertake to carve out any time zones on the contempt --

Mr. Robert L. Eberhardt: Your mean factually?

Chief Justice Warren E. Burger: Yes.

Mr. Robert L. Eberhardt: No, I only can point to the record to show you that the citations presented by the trial judge indicate the different days and times throughout the trial that these occurred.

I attempted to completely read the original prison breach transcript but it -- that goes over a period of 3000 some pages and my belief is that this a series, not a series of offenses but a group of individual offenses that's based upon the length of trial, the periods during which the trial continued on without interruption then all of a sudden there would be an action by one of the defendants.

I would like to address myself to the Seale decision for a minute.

The petitioners base their argument on the first issue presented to this Court on the rationale of the Court in the Seale.

I would like to point out several basic fallacies with that rationale.

First, being that the Court in Seale seems to assume that the trial judge is going to abuse the contempt power.

It seems to me that that opinion is based upon the fact that the trial judge has given the power to summarily sentence a defendant for a contemptuous acts, direct criminal contemptuous acts that that trial judge will abuse that discretion.

I take exception with that and would argue that the traditional appellate review of abusive discretion is available to a defendant and that the Courts can find those abuses and correct them.

I think it is very bad basis for the decision in Seale that the trial judge is assumed to be subject to abusing his discretion.

As far as the second issue is concerned the commonwealth, first of all would take some exception to the phrasing of the issue.

The issue was phrased in terms of a substantial term of imprisonment.

The Pennsylvania contempt statues do not provide for a maximum sentence.

Theoretically, I suppose that it could be argued that the defendant could subject himself by contempt, direct criminal contemptuous act to and unknown sentence, the maximum for which is not provided by statute.

Justice Byron R. White: I take it -- there’s no issue here -- let’s assume that there had been one sentence for a contempt, only one count of contempt and the sentence of a two years for it , would he had been entitled to a jury trial?

Mr. Robert L. Eberhardt: Yes, I think so.

Justice Byron R. White: That is because the second the trial to place after Bloom?

Mr. Robert L. Eberhardt: Well, the first trial occurred before this --

Justice Byron R. White: That is in 1966 --

Mr. Robert L. Eberhardt: We have submitted for the Court’s consideration an argument in our brief based upon the rationale in the case of Jenkins v. Delaware.

Justice Byron R. White: Yes.

Mr. Robert L. Eberhardt: The rationale there was that the Miranda decision should not be applied to retrials.

Justice Byron R. White: Well, that’s a different -- but jury trial is a question about the procedures at trial not about the procedure before trial?

Mr. Robert L. Eberhardt: That is true, that is true and of course the constitutional question of the right to jury trial is an important question.

However, we would submit that the commonwealth in this case proceeded under the case law then existing --

Justice Byron R. White: In 1966?

Mr. Robert L. Eberhardt: In 1966 and that the trial judge in sentencing at the end of the trial, I don’t know what went through its mind at that time.

He could’ve sentenced, he could’ve find -- cited him for contempt during the trial and apparently under the Seale decision that would have been alright to sentence him the six months and another contempt another six months, another contempt other six months and be consecutive and that would be fine.

But by waiting to the end of the trial, Seale decision and the argument of the petitioners, they would seem to indicate that that would have to accumulate.

Justice Byron R. White: But were these defendants tried twice for contempt?

Is that was first sentence set aside, was the first trial?

Mr. Robert L. Eberhardt: The opinion of this Court and the order of this Court was vacated and remanded.

Justice Byron R. White: And it went back to the trial court.

Mr. Robert L. Eberhardt: It went to another judge, the trial judge.

Justice Byron R. White: And so that was a new proceeding to the judgment that have been vacated?

Mr. Robert L. Eberhardt: I say that the sentence was vacated because this Court --

Justice Byron R. White: The judgment was vacated.

Mr. Robert L. Eberhardt: The judgment of sentence --in Pennsylvania, I suppose and most other jurisdictions they appeal on criminal cases from the judgment of the sentence.

Justice Byron R. White: Well, I would suppose that the judgment was vacated, the judgment is conviction would they --

Mr. Robert L. Eberhardt: Right.

The sentence that was imposed is the appealable. Once the sentence is imposed the appeal time starts to run.

Justice Byron R. White: No, but the new judge had to find whether again he had to make determination again whether he had been held and whether he had committed contempt.

Mr. Robert L. Eberhardt: Right and he did so, on the basis of the record.

Justice Byron R. White: So that was a new trial court proceeding?

Mr. Robert L. Eberhardt: Well, he didn’t make a new finding of appeal of contempt.

Justice Byron R. White: And at that point the Bloom I guess they only have been decided prior to that?

Mr. Robert L. Eberhardt: At that point Bloom have been decided.

Justice Byron R. White: And the question was then in for carrying out this proceeding must I proceed consistently with Bloom?

Mr. Robert L. Eberhardt: Correct.

Justice Byron R. White: And your contention is that you need not have a jury trial because no particular contempt do more than a six months sentence?

Mr. Robert L. Eberhardt: That is our basic [Voice Overlaps).

Justice William J. Brennan: Well, may I ask also Mr. Eberhardt, your Supreme Court on the first appeal in the Mayberry case before the case came here relying on our -- the Stefano that Bloom was perspective only sustained the consecutive sentences initially imposed on Mayberry.

Now, when after the second trial, it went back to the Supreme Court of Pennsylvania.

I notice that there is a one sentence per curiam, the judgments of contempt are affirmed.

Did you argue before the State Supreme Court that the same rationale that Bloom was not but retroactive required affirmance of those convictions?

Mr. Robert L. Eberhardt: We did argue that among other things.

Justice William J. Brennan: And we have no way of knowing.

I see that Judge Mandarino was the only the dissenter.

Whereas in the first trial Mr. Justice Roberts and I think Mr. Justice O’Brien took the view that they concurred only because Bloom was not retroactive.

Mr. Robert L. Eberhardt: Right.

Justice William J. Brennan: But how are we to read this judgment of contempt that are affirmed on the second go around?

Mr. Robert L. Eberhardt: I wish I had an opinion to present to the Court.

It would help me considerably and help the Court.

Justice William J. Brennan: But you did in any event argue that for the same reason --

Mr. Robert L. Eberhardt: Yes, we did and I have a copy of the brief that we submitted before the Pennsylvania Court.

Justice William J. Brennan: Yes, and you repeat that argument here as I read page 15 of your brief, don’t you?

Mr. Robert L. Eberhardt: Yes, we do and I would submit that the Pennsylvania statute although it is open-ended, I believe that the decisions of this Court look to the actual sentence imposed and I think that the Court should continue to do so and I would finally suggest to the Court that when the trial judge does decide to proceed non-jury without a jury on a contempt or several contempts where he awaits to end of trial, I believe that he is indicating to the defendant and to his counsel constructively that he is not going to consider these from reading of the citations.

He is not going to consider these contempts as serious but as petty and under six months sentence or six months sentence or less is all that he will consider to be imposed and that the second issue that is presented by the petitioners, there is a strong possibility or substantial possibility of long-term of an imprisonment.

I don’t believe it is so except that the fact that a defendant by himself creates a number of contemptuous acts, separate contemptuous acts and the mere fact that they are tried together by the Court may subject him to a substantial term of imprisonment that would being over six months, but the fact that they are tried together, I don’t believe has any bearing upon the fact that they are individual offenses and not one continuous act.

Chief Justice Warren E. Burger: Do you think there is anything in Mayberry or the cases prior to Mayberry that are discussed here that prevents a citation for each individual episode of contempt to be tried separately whether it was embraced within the day or one episode and then in the case of 11 contempts on 11 separate days to try him seriatim one after or another for each contempt without a jury on a summary proceeding give him six months on each one and if the judge is -- the new judge wanted to make them consecutive to go ahead and do so?

You seem to be the Mayberry that would preclude that or in other cases?

Mr. Robert L. Eberhardt: No, I don’t Mayberry itself speaks to the impartiality of the judge and the decision to Mayberry I think assists the trial courts in determining whether or not the trial judge who is -- to whom being contemptuous acts are directed and personally directed must disqualify.

Chief Justice Warren E. Burger: Do you think that you have to get new judge then for each case under Mayberry?

Mr. Robert L. Eberhardt: Well, under Mayberry I believe that that is direct decision and Mayberry was --

Chief Justice Warren E. Burger: At least it implies that that might be necessary?

Mr. Robert L. Eberhardt: It might be but I think it talks more in terms of waiting to the end of trial that is another point that we dispute to Seale rational making a difference between the end of the trial and during trial.

The petitioner makes an argument regarding the abuse that can occur at the end of the trial stronger than the abuse that can occur by citing the sentencing during trial.

Chief Justice Warren E. Burger: Isn’t there an important reason why the contempt proceeding is deferred until the end of the trial whether it’s directed against the defendant or against his lawyer?

Mr. Robert L. Eberhardt: Well, in the case of an attorney, it’s very important not to prejudice the defendant in the eyes of a jury by citing an attorney representing a defendant for contemptuous acts during that trial.

In this case, the defendants were acting as their own counsel and the trial judge may have felt that he would be prejudicing the defendants in the minds of a jurors by citing the sentencing them during the trial and that he deferred that until the end of trial so there as not to prejudice their defense or to enhance the commonwealth's case before the jury.

I think the distinction between during trial and end of trial citing the sentencing, there reasons for doing it during the trial and the reasons for doing it at the end of the trial and I think each individual case demands review and I think appellate review is available and pieces of discretion --

Justice Thurgood Marshall: Do I hear at one point they put them out of the room, put them out of the courtroom?

Mr. Robert L. Eberhardt: During the prison breach trial in which he committed to contempts, yes.

Justice Thurgood Marshall: Well, isn’t that one way to solve the problem rather than given him a hundred years?

Mr. Robert L. Eberhardt: I believe that is a -- the trial judge of course for this time was acting without the benefit of this Court’s opinion in Allen.

Justice Thurgood Marshall: So did the judge in Allen?

Mr. Robert L. Eberhardt: True, true.

Justice Thurgood Marshall: But the -- suppose the man cursing the judge three times, is that three contempts?

You know you keep saying in all of add on these contempts I just want to know you have contempt of Court once you get in contempt to Court, you are in contempt to Court.

Mr. Robert L. Eberhardt: This is true, but I think that the appellate courts have to look at the record and determine the court -- the same court that decided Seale case decided in re Chase and indicated that opinion that even when a trial judge cites and sentences during trial, the appellate court may have to look to determine whether or not the trial judge has --

Justice Thurgood Marshall: Do you say that in one trial it’s possible for a man to get 26 months sentence, 10 years?

Mr. Robert L. Eberhardt: If he commits individual acts of contempt that are not series of events of one type but are so continuous and contiguous in time and place and things like that that they can be identified as one continuing act.

Justice Thurgood Marshall: And you’ll end up with 10 years or 20 years?

Mr. Robert L. Eberhardt: I think the defendant himself --

Justice Thurgood Marshall: They were on treason before we get through without a jury.

This is a man going to serve 20 years without a jury?

Mr. Robert L. Eberhardt: Well, I think the Court’s interposition of a right to a jury trial is very important to defendants where they draw the line I am not sure, but I think in making a jury --

Justice Thurgood Marshall: Well, would you mind drawing in to 20 years?

Mr. Robert L. Eberhardt: If I was a defendant I might want to draw a little less than that.

I think --[Laughter]

Justice Harry A. Blackmun: Mr. Eberhardt, the defendant part on the facts do you think -- suppose this trial went a long for two days and then for good reasons it was recessed for three and the contemptuous cussing of the Court if you will took place at the first segment and then again at the second, does it disturb your sense of justice that that might be two separate contempts?

Mr. Robert L. Eberhardt: Somewhat but I would indicate that making a very strong per se rule for the trial judge to handle contemptuous acts would be very detrimental.

I think that the trial judge has to have some discretion that should impart to a judge of use of discretion.

The Chase opinion that I referred to from the Circuit Court indicated that the appellate courts must and can look to the whether or not the trial judge has by his own actions developed a series of what he had identifies as a contemptuous acts.

Justice William H. Rehnquist: Does Pennsylvania have judge sentencing or jury sentencing in substantive criminal offenses?

Mr. Robert L. Eberhardt: It's judge sentencing and I may indicate to the Court just for the information of the Court.

The Pennsylvania does have an indirect criminal contempt statute which provides for a jury trial and it does have a maximum sentence of 15 days and a hundred and/or $100 dollar fine.

In the indirect situation of course you have a act to being committed outside the presence of the Court and the determination by the legislature of Pennsylvania apparently and that is a very old statute was that a jury would be best determined whether or not the court’s order have been violated.

Justice Thurgood Marshall: Don’t you think the Allen case is going to help in the future?

Mr. Robert L. Eberhardt: I think the Allen case probably is best solution for contempt acts.

Justice Thurgood Marshall: In cases like this to get him out of that?

Mr. Robert L. Eberhardt: And the trial judge did on remand to this case one of them when Codispoti indicated that he was no longer going to abide by the decorum of the Court, he was taken into an ante chamber of the courtroom and the microphone and loudspeaker provided for him.

Justice Thurgood Marshall: Because the primary importance is to protect the dignity of the decorum of the courtroom, not any individual at law, that’s our primary responsibility.

Mr. Robert L. Eberhardt: Primary and secondary responsibility is prevent further acts of contempt.

Chief Justice Warren E. Burger: What is the longest sentence that can be imposed for a misdemeanor assault type of case in Pennsylvania without a jury trial?

Mr. Robert L. Eberhardt: Without a jury trial?

Chief Justice Warren E. Burger: Yes, Up to six months?

Mr. Robert L. Eberhardt: Six months I believe in Pennsylvania.[Voice Overlap]

I don’t believe it.

Chief Justice Warren E. Burger: Suppose the same gentleman being put out with the whole system of justice should meet the judge on 10 successive days and hit him over the head with a baseball bat, on each of those 10 successive days, would it defend your sense of justice if you were charged with 10 separate assaults?

Mr. Robert L. Eberhardt: No, it wouldn’t no, not one bit.

Chief Justice Warren E. Burger: These verbal assaults to the dignity of the Court extended over a period of six weeks or six-and-a-half weeks did you say?

Mr. Robert L. Eberhardt: Five-and-a-half to six weeks.

I believe that the commonwealth will argue against any adoption of a so called a single transaction test in the contempt area and I would further point out one additional case that the commonwealth has found in its research, two additional cases that are not cited in its brief.

One being Aaron v. State 284 So.

2d 673 in which the --

Justice William O. Douglas: 673?

Mr. Robert L. Eberhardt: 673.

Justice William O. Douglas: What State?

Mr. Robert L. Eberhardt: This is Florida and the Florida Court looked to its procedural rules on criminal contempt and ruled against accumulation of fines $500 fines to determine the right to jury trial.

]And another case that the commonwealth point out is in re Puerto Rico Newspaper Guild, Local 225 which is found at 476 F 2d 856.

It’s a First Circuit case that case --

Justice William J. Brennan: Puerto Rico, what’s that?

Puerto Rican crime?

Mr. Robert L. Eberhardt: No, it’s a labor dispute and the violation of a court order.

It’s an indirect contempt case but it does indicate non-accumulation.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Mr. Dean, do you have anything further?

Rebuttal of John J. Dean

Mr. John J. Dean: Yes, Your Honor.

I think that what this shows is that somewhat high miracle characterization they can attend our contempt analysis here because one thing that -- I think has emerged in regards both of the presentations here today is that when this case originally came up to the Court, the Chief Justice of the Pennsylvania Supreme Court had termed his conduct outrageous.

Mr. Justice Douglas of this Court termed the conduct of the defendant a shock to those raised in the western tradition of justice.

He had received 11 to 22 years sentence and all of a sudden when he comes back for a trial what has become at least according to the characterizations of the our new original trial judge the Justice of the or the Chief Justice of the Pennsylvania Supreme Court and the Justice of this Court as outrageous has been transformed into a petty contempt.

And I feel that that type of labeling putting on these are crime is what brings to fore the problem of looking solely to the actual sentence received on each crime rather than the aggregate sentence because by looking at the aggregate sentence, the effectiveness, the total problem that gets up here is well before the Court.

Justice William J. Brennan: Mr. Dean, what do you think of this one line affirmance of the Supreme Court after as I understand your colleague haven't urged that the non-retroactivity of Bloom required or permitted in any event affirmance of the consecutive sentences.

Mr. John J. Dean: I argued the case Your Honor in front of the Court.

That issue was raised.

I had cited the Court’s previous opinions of two of the justices who were currently on the Court in both instances and I can give you no possible explanation.

Justice William J. Brennan: Well, if that were the basis of the affirmance, have you any comment?

Mr. John J. Dean: That Bloom was not retroactive?

Justice William J. Brennan: Yes.

Mr. John J. Dean: I just don’t think that’s a correct legal reasoning.

Justice William J. Brennan: Why?

Mr. John J. Dean: I think it has to be retroactive because it was such a fundamental right --

Justice William J. Brennan: But the Stefano held it was not retroactive.

Mr. John J. Dean: Well, let me say this, I used the wrong the choice of words there.

I don’t think retroactivity is a real problem first of all because the trial was occurring subsequent to that.

I don’t think retroactivity really gets in to this issue but even assuming that retroactivity did get into the issue, the test of this Court has used to see whether a constitutional right shall be applied retroactively are usually would it result in changes in the police procedures, would it result in considerable disruption, would it result in releasing other criminals or things like this.

And I don’t think any of the tests under the Linkletter approach have any negative value to stop this from being applied if you want to use that characterization retroactively.

I think it could easily be applied retroactively.

It is my understanding of Pennsylvania law that we were require jury trial for all crimes.

We just have a new felony code.

Before we had felonies and misdemeanors, we now have them graded felonies and graded misdemeanors.

Any misdemeanor requires a jury trial in our Court.

Justice Byron R. White: Do you still have an open-ended -- is it still open-ended on contempt?

Mr. John J. Dean: There’s absolutely no maximum sentence on contempt of Court.

Justice William H. Rehnquist: And even if you prevail here I take it the judge would still impose the sentence for the contempts that the jury found to have been committed?

Mr. John J. Dean: Yes, the judge is the one who has absolute discretion over the sentencing and absent a very clear abuse of discretion our appellate courts will not review a sentencing judge's determination.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.