ABAJ.com: Appeals Court OKs Summary Contempt Ruling re Lawyer Sentenced to 90 Days for In-Court Diatribe by Martha Neil:
The Massachusetts Appeals Court has upheld a judge's summary contempt ruling concerning a lawyer who was sentenced to 90 days after diatribing at length in court when jury selection didn't go his way.
The outburst by Barry Wilson during his client's Suffolk Superior Court murder trial was "atrocious. It's the worst that I've ever seen in the twenty-two years of presiding over trial," the judge told the attorney two weeks later, as he imposed the sentence, which was stayed pending appeal.
The case is Commonwealth v. Wilson, No. 11-P-1143 (Mass. Ct. App. March 20, 2012):
WILSON: "Lock me up now. Just lock me up and declare it a mistrial. I'm not sitting with that guy on this jury. No way."
THE COURT: "Mr. Wilson--"
WILSON: "No way. No way am I going to try a case with that man. That's ridiculous. Fifteen years a federal agent and he's going to be unbiased. Are you kidding me? I can't do it. I won't do it. Take my ticket. I don't really care. This is just plain ridiculous. Ridiculous. I'm going to sit there with a federal agent who says that he's not going to believe his fellow officers, are you ridiculous. You gotta be. You gotta be. I can't try the case and I won't. I will not."
THE COURT: "Well, I'm afraid you're going to have to try the case."
WILSON: "Oh, I don't think so. I can't. I'm not looking--I can't. I can't. How can I look at my client and say he should think this is legitimate after you make a ruling like that and you excuse a woman who had two children, and that's enough excuse? You think I would ever let a woman--whatever that man is--sit on it."
Wilson next screamed at the judge:
WILSON: "And the other thing is I think maybe if he's [juror 35] standing outside there you better go ask him if he heard me screaming, because I think you gotta excuse him now 'cause I think he knows I don't like him."
THE COURT: "Mr. Wilson, is there some reason that I should not hold you in contempt?"
WILSON: "Judge, you can do what you wish to do, but I have news for you. How could you expect me to do anything different? A young man is on trial for his life, and a juror goes bye-bye. I can--I said that I had a decision. I made decisions.
"A juror is not there, and then I--exactly everything I predict is going to happen and then it happens, and you want me to say that's okay and tell my client he should feel okay and tell my client that it's [on] the up-and-up and that it's all fine.
"You can hold me in contempt. You could send me [to] Nashua Street right now. I'll go with my client and maybe we can get a cell together and maybe you could declare a mistrial and then we can start over again because I am not--I am not going to try a case in which as far as I'm concerned the Commonwealth doesn't have a shot to be except by--except by police officers going and leaning on people and getting the changed stories.
"And now I'm going to put in the box a man who spent fifteen years in Homeland Security, and I'm going to think that my client is going to get a fair trial? I don't think if they came up and they asked to put me in the box that any prosecutor in their right mind would think that I should sit there.
"This is just, just wrong. You can do whatever you wish to me, but this is just wrong."
THE COURT: "All right. Thank you, Mr. Wilson. I've heard enough.
"I do hold Mr. Wilson in contempt. I find that his behavior is loud, insulting, disrespectful behavior. The loud voice being at least partially intended so the jurors may hear him, including the juror who is presumably waiting outside the door, is disruptive to the Court proceedings. And I am going to hold him in contempt, and I am going to sentence him.
"However, I'm going to defer the sentencing until a later date. I respect the defendant's right to have counsel of his choosing try the case, so I'm not going to interfere with that. Mr. Wilson will be expected to continue to defend Mr. Jackson, and at the conclusion of the case I'm going to sentence him appropriately.
"He is held in contempt, and those are my findings."
WILSON: "You can't do that. You can't do that because what I'm going to put on record right now is you going to send me to jail, but if I act like a good boy, maybe I'll only go to jail for a few days. If I act like a bad boy, then I'll go to jail for a few weeks or a few months, or whatever time I don't know.
"But in any event, what we have is now I have to consider whether or not I can do the right thing by my client or can I do the right thing by me. Will I go to jail or won't I go to jail or how long I go to jail.
THE COURT: "Take [juror 35] upstairs. We'll break for five minutes. We'll resume. I'll bring the jurors down. I'll excuse them for the day. If there's any other legal matters that have to be taken up this afternoon, I'll do that then. We'll recess for five minutes."
WILSON: "I'm not done. I'm not done. Let the record reflect that I cannot represent my client anymore because I've been held in contempt and the condition of my contempt will not be decided until the Court--the trial is over. And I cannot make a determination based--I cannot conduct myself in a manner that I'm supposed to or not supposed to, but I cannot be a zealous advocate and within the propriety of what my responsibilities are under the code of professional ethics because I don't know.
"Right now I have to worry about me instead of worrying about my client, and if I got to worry about me instead of my client, then I can't worry about my client, then I can't do my job because under the code my first responsibility is to my client."
THE COURT: "All right. Five minute recess."
Wilson's angry outburst covered over five pages of the transcript and over two minutes on the audio disc. The trial proceeded with Wilson representing Jackson. On May 17, 2011, Jackson was found guilty of murder in the first degree and sentenced.
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"A lawyer shall represent a client zealously within the bounds of
—§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)
"I simply want to tell you that there are some men in this world who were
born to do our unpleasant jobs for us. Your father is one of them."
—Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960)
"The very premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective that
the guilty be convicted and the innocent go free."
—Herring v. New York, 422 U.S. 853, 862 (1975)
"The right to the effective assistance of counsel is thus the right of the
accused to require the prosecution's case to survive the crucible of meaningful
adversarial testing. When a true adversarial criminal trial has been conducted
... the kind of testing envisioned by the Sixth Amendment has occurred. But
if the process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated."
—United States v. Cronic, 466 U.S. 648, 655-56 (1984)
"The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
"The right to offer the testimony of witnesses, and to compel their attendance,
if necessary, is in plain terms the right to present a defense, the right to
present the defendant's version of the facts as well as the prosecution's to
the jury so it may decide where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law."
—Washington v. Texas, 388 U.S. 14, 19 (1967)
"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity
to present a complete defense.'"
—Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
"[O]ur so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the
truth. Our system assigns him a different mission. He must be and is interested
in preventing the conviction of the innocent, but, absent a voluntary plea of
guilty, we also insist that he defend his client whether he is innocent or guilty.
... [A]s part of our modified adversary system and as part of the duty imposed
on the most honorable defense counsel, we countenance or require conduct which
in many instances has little, if any, relation to the search for truth."
—Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)
We, as criminal defense lawyers, are forced to deal with some of the lowest
people on earth, people who have no sense of right and wrong, people who will
lie in court to get what they want, people who do not care who gets hurt in
the process. It is our job–our sworn duty–as criminal defense lawyers,
to protect our clients from those people.