Carrow, In re, Cr. 11813

• Decision Date: 25 July 1974
• Docket Number: Cr. 11813
• Citation: 115 Cal.Rptr. 601,40 Cal.App.3d 924
• Court: California Court of Appeals Court of Appeals
• Parties: In re Robert D. CARROW on Habeas Corpus.

Page 601

115 Cal.Rptr. 601

40 Cal.App.3d 924

In re Robert D. CARROW on Habeas Corpus.

Cr. 11813.

Court of Appeal, First District, Division 3, California.

July 25, 1974.

Alvin H. Goldstein, Jr., Anthony C. Duffy, Tuckman, Goldstein & Phillips, San Francisco, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for respondent.

Victor J. Van Bourg, Stewart Weinberg, Levy & Van Bourg, Garry, Dreyfus, McTernan & Brotsky, Benjamin Dreyfus, San Francisco, Dennis J. Roberts, Oakland, for amicus curiae in support of petitioner.

DEVINE, ^* Associate Justice.

Robert D. Carrow, lawyer, was found guilty of contempt of court committed during the trial in which he represented Ruchel Magee. Two incidents of contempt were charged. On each petitioner was fined $500 and sentenced to five days in the county jail, the sentences to run consecutively. He seeks annulment by petition for habeas corpus. The Supreme Court has issued an order to show cause why the writ should not be granted, and has directed us to consider the matter in the light of In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201.

A just disposition cannot be made without an understanding, if not compassionate, consideration of the almost unbearable pressure the trial brought upon judge and counsel. It is unnecessary, because the trial drew national attention, to say more about its general character, than that it concerned charges of murder of a distinguished judge and of other persons, assault by gunfire upon a deputy district attorney, and of kidnaping for purposes of extortion; that by the time of the first episode of alleged contempt, the trial had been going on for six weeks; that extraordinary security measures were taken; that defendant constantly expressed his wish to represent himself; and that during the trial he spat on Mr. Carrow, struck him, spoke to the spectators asking that someone get a gun and kill his lawyer. Besides, as was made known to the court by declaration under penalty of perjury, Mr. Carrow was beset with personal problems during the trial: he suffered from gastric ulcers; his family had been threatened with harm; he had tried to withdraw from the case, but had been refused; his father had died unexpectedly, and he had been prevented from despatching attendant family affairs. (No reference to this declaration is made in the order of contempt; presumably it was deemed insufficient to excuse the conduct, even when accompanied by the apology referred to below.)

It is necessary to discuss at this point petitioner's contention that the judge had become so 'embroiled' in controversy with petitioner that he was obliged to recuse himself and to refer the matter to another judge. In respect of some eleven instances of asserted impatience or petulance on the part of the judge in dealing with counsel, at other times than those of the crucial episodes, we find nothing of a particularly personal nature. The incidents are of not uncommon kind, particularly in a long and exasperating trial; and in some, counsel was guilty of time consuming conduct. In the matter of 'embroilment' in the two episodes, we find again none of the personal involvement which would require recusal. The remarks made by counsel, as described below, even considered in the most unfavorable light, do not approach the insulting charge, made in In re Buckley, which directly impugned the integrity of the judge, by charging him with unwillingness to apply the law; but even that affront, it was held, did not constitute such 'fighting words' (as were the epithets hurled in Mayberry v. Pennsylvania, 400 U.S. 455, 465--466, 91 S.Ct. 499, 27 L.Ed.2d 532) as to make the judge unfit to pass on the matter of contempt. Whether the fact that the judge postponed the adjudication until the end of the trial (showing that immediate punishment was not necessary for orderly progress of the trial) compelled referring the matter to another judge, or would merely have been better procedure, as was said in Mayberry, we need not decide because of our conclusion on the merits.

The very absence of strictly personal insult which negatives necessary 'embroilment' minimizes the thrust of the lawyer's remarks, which we proceed to analyze in some detail. Because of the step by step examination, it will best suit the reading if we announce here our conclusion, which is that, even giving to the adjudication the benefit of the substantial evidence rule, as we are bound to do (In re Buckley, 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201; In re Ciraolo, 70 Cal.2d 389, 394, 74 Cal.Rptr. 865, 450 P.2d 241), we cannot sustain the order of contempt.

The First Episode

The remark which the court found offensive was: 'Your Honor, I submit this trial is becoming a joke.' That the remark was ill-chosen is virtually conceded; but unfortunate statements do not necessarily call for imprisonment. Surely contempt must be dealt with firmly lest the judicial process fall into disrepute. But the remark herein, unlike that in Buckley (and in the several cases cited therein, 10 Cal.3d at page 248, 110 Cal.Rptr. 121, 514 P.2d 1201), 'a charge of deliberate judicial dishonesty' (10 Cal.3d at p. 250, 110 Cal.Rptr. at p. 129, 514 P.2d at p. 1209), is not contemptuous on its face, because in itself it does not refer to judicial conduct, much less to judicial nefariousness. Indeed, it commences with the respectful salutation, 'Your Honor,' and with the deferential words, 'I submit.' Thereafter, the words refer to an Objective matter: that the trial (this could be by the action of someone or by several persons or by inaction or by accident) had become, perhaps momentarily, ludicrous. (Ironically, trials have been judicially termed a 'farce,' so far as we know, only when an advocate has failed to perform his obligation of firm and intelligent advocacy, e.g., People v. Ibarra, 60 Cal.2d 460, 466, 34 Cal.Rptr. 863, 386 P.2d 487.)

Moreover, the judge did not declare in the order, as did the judge in Buckley (even though the remark there was held contemptuous on its face) that the statement made an accusation, specifying its nature, against the judge. The order adjudging contempt does contain the conclusionary words that the utterance held the court up to ridicule and scorn. But how? What does the order describe as an imputation of malfeasance or nonfeasance on the part of the judge? Nothing; and in this we find it defective, because 'such an order is valid only if it recites facts with sufficient particularity to demonstrate on its face that petitioner's conduct constituted a legal contempt.' (In re Buckley, supra, 10 Cal.3d at p. 247, 110 Cal.Rptr. at p. 127, 514 P.2d at p. 1207.) Particularly is the order deficient in the context in which the remark was made, which is relevant in the matter of intent. (In re Buckley, supra, at p. 246, fn. 12, 110 Cal.Rptr. 121, 514 P.2d 1201.) We proceed to describe the circumstances.

At the beginning, we observe that the admittedly faulty remark was not preceded by any utterance of a disrespectful character, unlike the situation in the Buckley case, in which the offending remark appears to have been the climax to several prior impertinent remarks by Buckley to the judge. (10 Cal.3d at p. 250, fn. 16, 110 Cal.Rptr. 121, 514 P.2d 1201.) The situation was this: petitioner had called as witness a probation officer to testify to certain observations he had made at the scene and, understandably, he was concerned to limit the cross-examination to the scope of the direct. The passage leading to the assertedly contemptuous remark begins with the prosecutor's expressing doubt that he could pursue the inquiry along a certain line; but he proceeded, tentatively. Petitioner then asked the court, respectfully, for permission to address the court on the subject of the limits of the 'scope' or 'scopes' of permissible cross-examination. (Different physical areas of the scene were the subject of the question). The judge replied, 'one more word out of you and there are going to be problems,' and that he would hear the matter outside the presence of the jury. But this promised procedure was not followed. The prosecutor then asked a question which he later conceded was too general; the witness, who was very 'forceful and articulate,' speaking 'awfully fast' (as the prosecutor admitted) ran away with a narrative which (again, by the prosecutor's honest admission) 'was going a little too far' and 'covered quite a lot of ground.' During the witness' hurried flow, the prosecutor actually waved at him to cease (here, again, the prosecutor forthrightly later said so to the judge). Then came the single expostulation from petitioner. It may have been directed primarily at the witness and only secondarily, if at all, at the judge. No ruling of the latter was challenged. It was the turn of events (brought about unwittingly by the judge's failure to take the matter up in the jury's absence, coupled with the silencing of counsel), apparently, which exasperated counsel.

But whatever may have been the erroneous or ambiguous or hyperbolic or disrespectful utterance, it was subject to easy and rapid correction. And counsel asked the judge, 'Might I be heard?' six times before he was able to explain. The difficulty, it developed, was this: counsel believed he had been silenced (a reasonable conclusion) by the court's 'one more word out of you' warning; this permitted the flood of words from the witness. The judge was of the view that objection on the ground that the testimony was narrative should have been made, and said it would have been sustained. But a request, such as counsel had made, for a prospective ruling might have served well where such a subject as 'scope' was concerned, in order to avoid repetitive objections. The court had recognized this, in its...