712 F.3d 814 (3rd Cir. 2013), 11-4471, In re Kendall

Docket Nº:11-4471.
Citation:712 F.3d 814
Opinion Judge:SMITH, Circuit Judge.
Party Name:In re the Honorable Leon A. KENDALL, Petitioner.
Attorney:Samuel H. Hall, Jr. [Argued], Hall & Griffith, St. Thomas, VI, Counsel for the People of the Virgin Islands. Howard M. Cooper [Argued], Julie E. Green, Todd & Weld, Boston, MA, Counsel for Leon A. Kendall. The ACLU Affiliates of New Jersey, Pennsylvania, and Delaware, Lawrence S. Lustberg, Joshua...
Judge Panel:Before: SMITH, HARDIMAN, and ROTH, Circuit Judges. ROTH, Circuit Judge, concurring:
Case Date:April 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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712 F.3d 814 (3rd Cir. 2013)

In re the Honorable Leon A. KENDALL, Petitioner.

No. 11-4471.

United States Court of Appeals, Third Circuit.

April 3, 2013

Argued Dec. 6, 2012.

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Samuel H. Hall, Jr. [Argued], Hall & Griffith, St. Thomas, VI, Counsel for the People of the Virgin Islands.

Howard M. Cooper [Argued], Julie E. Green, Todd & Weld, Boston, MA, Counsel for Leon A. Kendall.

The ACLU Affiliates of New Jersey, Pennsylvania, and Delaware, Lawrence S. Lustberg, Joshua C. Gillette, Newark, NJ, Counsel for Amici Curiae in Support of Leon A. Kendall.

Before: SMITH, HARDIMAN, and ROTH, Circuit Judges.

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SMITH, Circuit Judge.

As Alexander Hamilton famously explained, courts have " no influence over either the sword or the purse." The Federalist No. 78 (Alexander Hamilton). They have " neither FORCE nor WILL but merely judgment." Id. Except for the persuasiveness of their decisions, courts can compel obedience to their orders only through their inherent power of contempt. Int'l Union of United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (describing the " inherent contempt authority" as a power " necessary to the exercise of all other[ ]" judicial powers (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812))). The contempt power, however, is limited to " those instances where the court must vindicate its authority." Waste Conversion, Inc. v. Rollins Envtl. Servs., 893 F.2d 605, 612 (3d Cir.1990). It is " not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be [people] of fortitude, able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947).

After the Virgin Islands Supreme Court issued a writ of mandamus in a criminal case presided over by former Superior Court Judge Leon A. Kendall, he published an opinion chastising the mandamus decision and recusing himself from the case due to alleged prosecutorial misconduct. The Justices cited Kendall for criminal contempt and eventually found him guilty because his opinion, in their view, obstructed the administration of justice and because his recusal was pretextual in that he sought to avoid complying with the writ of mandamus.

Kendall asks us to reverse his convictions. He argues that his judicial opinion is protected by freedom of speech and cannot therefore serve as a basis for criminal contempt. As to that novel question, we hold that the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceedings. Kendall's opinion did not pose such a threat. We also agree with Kendall that there is insufficient evidence that his recusal was pretextual. Consequently, we will reverse the Virgin Islands Supreme Court's judgment and vacate all of Kendall's contempt convictions.


A. The Underlying Criminal Case

Kendall's criminal-contempt convictions arose from actions he took while presiding over People v. Ford, a criminal trial of Basheem Ford and Jermaine Paris for killing an off-duty police officer. See generally Crim. Nos. 76/2008, 109/2008 (V.I.Super.Ct. July 7, 2009). The prosecutor, Assistant Attorney General Jesse Bethel, Jr., initially charged Ford and Paris with manslaughter (among other crimes) in January 2008 but later added charges of first-degree assault and first- and second-degree murder.

Bethel subsequently expressed " serious doubt" to his supervisor about whether he could successfully convict Ford and Paris of more than voluntary manslaughter. Although he later admitted that his prosecutorial duties required him not to pursue charges about which he had " serious doubt[s]," Bethel left the murder charges pending and began plea negotiations with counsel for Ford and Paris.

On January 16, 2009, Bethel left a voicemail with the defendants' counsel that offered Ford and Paris a plea bargain to involuntary manslaughter in exchange for

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dismissal of the remaining charges— an offer they accepted ten days later. Bethel then reversed course, claiming that he had offered a plea deal to voluntary manslaughter and denying that any plea deal existed for involuntary manslaughter. People v. Ford, 52 V.I. 30 (V.I.Super.Ct. July 7, 2009) (depublished). Ford and Paris each moved to enforce the involuntary-manslaughter offer. During argument on the motions before Kendall, Bethel said that even though he might " have misspoken" or the defendant's counsel may have " misunderstood" the deal, he also insisted that he " made it very clear" that " the deadline to respond [to the offer]" was January 26, 2009, and that the defendants had not done so. But a voicemail of Bethel's plea offer told a different story. That recording " unambiguously" revealed that Bethel's offer was for involuntary manslaughter— not voluntary manslaughter, as Bethel had later claimed— and that Bethel had never imposed any deadline for the defendants to accept the offer.

Based on this evidence, Kendall concluded that Bethel misrepresented his plea offer to the Court and held that the defendants' acceptance of Bethel's offer had created a binding plea agreement. Accordingly, Kendall scheduled a change-of-plea hearing for February 2, 2009 at 4:00 p.m., cancelling jury selection and the jury trial. Unhappy with this course of events, Bethel repeatedly interrupted and traded jabs with Kendall, who admonished him several times. That back-and-forth culminated with Bethel informing Kendall that he would not be present for the change-of-plea hearing. Kendall responded that he did not " need to know that" and proceeded to schedule the change-of-plea hearing anyway.

On the morning of the hearing, Bethel appealed Kendall's decision to enforce the oral plea offer to the Virgin Islands Supreme Court. And consistent with his earlier promise, he did not show up for the change-of-plea hearing at 4:00 p.m. that afternoon. After waiting fifteen minutes without any sign of Bethel, Kendall adjourned the hearing, held Bethel in contempt, and issued a warrant for his arrest. At about 4:30 p.m., Bethel was arrested and remained under the control of the Bureau of Corrections until the next morning. At the time, Bethel told the media and the Virgin Islands Supreme Court that he had been incarcerated overnight— a statement that was later revealed to be false when Bethel admitted that the warden had allowed him to spend the night at home without judicial authorization and without the $10,000 bail set by Kendall.

At a hearing the next day, Bethel apologized to Kendall for his " tardiness" and explained that he was " in the process of filing papers" and " looking for a parking space." Although Kendall concluded that these explanations were false, he accepted an apology from Bethel and " defer[red]" from any decision to hold him in contempt. Kendall never revisited the issue of Bethel's contempt. At the end of the hearing, Kendall returned to the issue of whether the plea offer for involuntary manslaughter was enforceable. Kendall asked Bethel and defense counsel to submit supplemental briefing on Virgin Islands v. Scotland, 614 F.2d 360 (3d Cir.1980), a Third Circuit case holding that a prosecutor may withdraw a plea offer at any time before the court accepts it unless the defendant detrimentally relies on the offer by, for example, pleading guilty. Kendall stated that " if Scotland is dispositive, the Court will proceed to trial; if not, the Court will enforce the plea agreement."

Beginning that same day, the Virgin Islands Daily News published several articles about Bethel's arrest, detention for

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contempt, and eventual release. One of the articles recounted Bethel's earlier misrepresentations at the hearing about the oral plea offer.

On February 5, Bethel moved for reconsideration of Kendall's decision to enforce the plea agreement to involuntary manslaughter, but Kendall denied that motion. He concluded that the revelation of the plea agreement in numerous press reports (including the Daily News article) had tainted the jury pool and therefore made it impossible for Ford and Paris to receive a fair trial. Consequently, he reasoned that Ford and Paris had detrimentally relied on the plea agreement, and so he had to enforce it. Kendall then rescheduled the change-of-plea hearing for March 11, 2009.

B. The Writ of Mandamus Against Judge Kendall

Following Kendall's decision to enforce the plea agreement for involuntary manslaughter, Bethel filed an amended notice of appeal with the Virgin Islands Supreme Court, indicating that there was no factual basis for acceptance of a guilty plea to involuntary manslaughter. Bethel simultaneously petitioned the Virgin Islands Supreme Court for a writ of mandamus directing Kendall not to enforce the plea agreement.

In the petition, Bethel made several mischaracterizations and also took swipes at Kendall. He claimed that Kendall had publicly " commented on [ People v. Ford in a manner] adverse to the People's position as reported in the Virgin Islands Daily News." He said that Kendall " participated in plea negotiations directly by ... mandating what the plea agreement should be in its entirety." And in reference to his absence from the initial change-of-plea hearing, Bethel claimed that he had told Kendall " he would not be appearing on Monday, February 2, 2009, for the Change of Plea, but he did not say and never intended to convey that he would not be appearing at all." Kendall declined the Virgin Islands Supreme Court's invitation to appear in the mandamus action in response to Bethel's petition.

The Virgin Islands Supreme Court denied Bethel's direct appeal because Kendall's rulings were not yet final but granted his petition for mandamus. According to the Virgin Islands Supreme Court, settled...

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