Ciraolo v. Madigan, 24475.

• Decision Date: 28 May 1971
• Docket Number: No. 24475.,24475.
• Citation: 443 F.2d 314
• Parties: Michael C. CIRAOLO, Petitioner-Appellant, v. Frank I. MADIGAN, Sheriff of Alameda County, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

443 F.2d 314 (1971)

Michael C. CIRAOLO, Petitioner-Appellant, v. Frank I. MADIGAN, Sheriff of Alameda County, Respondent-Appellee.

No. 24475.

United States Court of Appeals, Ninth Circuit.

May 28, 1971.

Andre T. La Borde (argued), Asst. Public Defender, John D. Nunes, Public Defender, Alameda County, Oakland, Cal., for petitioner-appellant.

Robert R. Granucci (argued), Deputy Atty. Gen., Evelle J. Younger, Cal. Atty. Gen. Albert W. Harris, Jr., Asst. Atty. Gen., San Francisco, Cal., for respondent-appellee.

Before JERTBERG, MERRILL and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

Michael C. Ciraolo, an assistant public defender of Alameda County, California, was adjudged guilty of contempt, fined, and sentenced to jail by Judge Kroninger of the Alameda County Superior Court. The conviction followed the filing of an affidavit of prejudice in support of a challenge of Judge Kroninger for cause by Mr. Ciraolo while representing a defendant in a murder prosecution. The Supreme Court of California denied a petition for writ of habeas corpus. In re Ciraola, 70 C.2d 389, 74 Cal.Rptr. 865, 450 P.2d 241 (1969). Mr. Ciraolo then filed an application for habeas corpus in federal district court. He asserted that Judge Kroninger had convicted and sentenced him without adequate notice, hearing, or counsel, in violation of the Due Process Clause of the Fourteenth Amendment. The district court denied the petition. Mr. Ciraolo appealed.

I

A summary of the general principles governing this appeal will provide a helpful background to the statement of facts. All that is required for this purpose may be found in a single paragraph of Justice Black's opinion in In re Oliver, 333 U.S. 257, 275-276, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948):

"Except for a narrowly limited category of contempts, due process of law as explained in the Cooke case Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L.Ed. 767 (1925) requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.¹ The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court\'s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent `demoralization of the court\'s authority\' before the public. If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires, according to the Cooke case, that the accused be accorded notice and a fair hearing as above set out."

II

The events leading to Mr. Ciraolo's contempt conviction began in a criminal proceeding before Judge Kroninger involving a defendant (Mr. Dodge) represented by Mr. Newhouse, one of Mr. Ciraolo's fellow attorneys in the public defender's office.

On July 3, 1968, Mr. Newhouse filed a peremptory challenge to Judge Kroninger under section 170.6, California Code of Civil Procedure, stating that he did so at the request of defendant Dodge. Judge Kroninger rejected the challenge on the ground that it was untimely because it should have been submitted to the presiding judge before the case was transferred to Judge Kroninger for trial.²

A jury was selected and sworn and the case against defendant Dodge set for trial on July 5.

When court convened on July 5, Judge Kroninger noted that defendant Dodge had not been personally present when his case was assigned for trial by the presiding judge and that this procedural error probably undercut Judge Kroninger's ruling that the peremptory challenge was untimely. Judge Kroninger suggested that if Mr. Newhouse would waive any irregularities that might have occurred and stipulate to the declaration of a mistrial, Judge Kroninger would return the case to the presiding judge for reassignment. Mr. Newhouse declined. The Judge then asked Mr. Newhouse if he wished to withdraw the peremptory challenge. Again Mr. Newhouse declined.

Judge Kroninger then raised the question whether a unilateral declaration of a mistrial would prevent reprosecution of defendant Dodge on the ground of double jeopardy. The prosecuting attorney indicated that it probably would. The Judge responded that, if so, it would be "an anomolous situation" because the error "was either participated in, or at least acquiesced in, by counsel for the party complaining." He pointed out that when the case was called before the presiding judge, "counsel for the defendant permitted it to be called in his absence"; that when the presiding judge proposed to assign the case, "no protest was made"; that when the presiding judge assigned the case, "counsel for the defendant permitted the execution of that order without protest"; and that only when the case reached Judge Kroninger for trial was the peremptory challenge filed. He again remarked that it was "anomolous" that "counsel for the defendant should be able to permit that error to occur and then stand on this dilemma that's presented," although it might be "that even though counsel for a party may participate, the client may stand on it and claim jeopardy and obtain the benefits of that error his own attorney participated in."

After hearing further from the prosecuting attorney and Mr. Newhouse, Judge Kroninger again declared that "it would seem anomolous * * * that counsel for a party may either actively or tacitly participate in or permit error, and yet rely on it to claim once in jeopardy or claim any other benefits." He went on to indicate that there was "a strong suspicion, at least," that the peremptory challenge "was suggested by counsel, and in that case it would be even more reprehensible to permit counsel to stand by and wait until the matter has been assigned for trial before making that suggestion." Finally, Judge Kroninger stated that the defense of double jeopardy should not be available when a mistrial is declared for the defendant's benefit, "to procure for him privileges which * * * he was not able to exercise because of error committed by the presiding judge and neglect on the part of his own counsel."

The exchange ended when the prosecuting attorney offered to accept defendant Dodge's guilty plea to a lesser included offense.

Five days later, on July 10, in the course of representing a defendant (Mr. Banks) in another criminal proceeding, Mr. Ciraolo filed his personal affidavit in support of a challenge of the trial judge, Judge Kroninger, for cause under subdivision 5 of section 170, Code of Civil Procedure. The affidavit recited that Judge Kroninger had "stated on July 5, 1968 that the Public Defender of Alameda County and his Office are incompetent * * * and due to that statement the Court is prejudiced against the defendant's counsel and affiant believes that the defendant cannot have a fair and impartial trial before said judge." Judge Kroninger filed a declaration in response denying that he had ever made the statement "or any words to such effect."³

A hearing was held on the challenge for cause on the following day before another judge of the Superior Court, Judge Emerson. Mr. Newhouse testified to Judge Kroninger's remarks on July 5 as reflected in the transcript and outlined above. He testified, however, that, in addition to suggesting that the attorneys in the public defender's office had acquiesced or participated in error and had been negligent, as reflected in the transcript, Judge Kroninger had also said, in substance, that they were incompetent.

On cross-examination Mr. Newhouse was asked if Judge Kroninger had used the exact words attributed to him in Mr. Ciraolo's affidavit, namely, "That the Public Defender of Alameda County and his Office are incompetent." Mr. Newhouse responded, "No, he never stated those words, but I would like to explain that answer. The sense of the proceedings which I imparted to Mr. Ciraolo were those words." Mr. Newhouse further testified that the statement in Mr. Ciraolo's affidavit "was my impression of the remarks made to — in court to me" and that he had passed them on by word of mouth to Mr. Ciraolo.

No other witnesses were called. Judge Emerson ruled that Judge Kroninger was not disqualified. The grounds for the ruling are far from clear, but Judge Emerson did expressly state that he refrained from "passing on the credibility of either Mr. Newhouse or Judge Kroninger."⁴

The case proceeded to trial, and defendant Banks was convicted.

On August 5, defendant Banks appeared for sentencing, represented by the public defender, Mr. Nunes. After a continuance to Friday, August 9, was agreed upon, the following colloquy occurred:

"THE COURT: While you\'re here, Mr. Nunes, I would like * * * to call to your attention, if you are unaware of it, that an affidavit which appears in the file in this case was executed, prepared and executed by one of your deputies, Mr. Ciraolo, who tried this case, and I wonder if you would be interested in asking that this be withdrawn from the file at this time?

MR. NUNES: Well, may I talk to him about it and have him communicate with you?

THE COURT: Well, I would like to have him here Friday. You, of course, are free to be here if you wish, but I would like Mr. Ciraolo to be here Friday * * * I wish you would speak to him about it and see what he thinks should be done in that connection.

MR. NUNES: I shall, your Honor."

Mr. Ciraolo appeared before Judge Kroninger with defendant Banks on August 9 at the time set for sentencing. Defendant Banks was sentenced.

Judge Kroninger then said to Mr. Ciraolo, "There is one other thing I feel...