Greene v. Tucker, Civ. A. No. 174-73-R.

• Decision Date: 14 May 1974
• Docket Number: Civ. A. No. 174-73-R.
• Citation: 375 F. Supp. 892
• Parties: JeRoyd W. GREENE, Jr., etc. v. The Honorable J. Randolph TUCKER, Jr.
• Court: U.S. District Court — Eastern District of Virginia

375 F. Supp. 892

JeRoyd W. GREENE, Jr., etc. v. The Honorable J. Randolph TUCKER, Jr.

Civ. A. No. 174-73-R.

United States District Court, E. D. Virginia, Richmond Division.

May 14, 1974.

COPYRIGHT MATERIAL OMITTED

Robert P. Geary, Richmond, Va., for plaintiff.

James E. Kulp, Asst. Atty. Gen., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Petitioner, JeRoyd W. Greene, Jr., seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state conviction by the Hustings Court of the City of Richmond for criminal contempt. He contends that the procedures under which he was convicted denied him due process and equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States. The Court has determined that a plenary fact-finding hearing is unnecessary, and the matter is now ripe for disposition.

The facts, as they appear in the transcript of the hearing wherein the contempt allegedly occurred, are as follows: The incident in question arose during trial in the case of Commonwealth v. Bullock, begun on January 18, 1972, before the Honorable J. Randolph Tucker, Judge of the Hustings Court of the City of Richmond. The defendant in that case was represented by petitioner Greene, who is an attorney of considerable experience. During an initial inquiry by the Court, petitioner stated that he was ready for trial. The Court then commenced the impanelling of the jury.

After twenty members of the venire had been impaneled, petitioner asked that the entire venire be temporarily excused. Upon their departure, Greene noted that the defendant in the case was Black, that the victim was White, that the charge was murder, that the population of Richmond was close to fifty per cent Black, and that of the twenty jurors impanelled only two were Black. He then alleged racial discrimination in the composition of the jury panel, stated he was not prepared to go forward with the trial, and moved that another panel be drawn.

While Judge Tucker agreed that there were unusually few Blacks on the panel, he expressed the view that the situation could be attributed to happenstance. The motion for a new venire was denied.

Petitioner again indicated that he was not prepared to go forward with the chosen panel since in his opinion the remedies available through appellate review of or collateral attack upon a potential conviction were inadequate. Petitioner then again moved for another venire which, after an expansion of petitioner's views, resulted in the following colloquy:

THE COURT: The Court's already ruled on the motion; the motion is denied. We'll go forward with the trial. When you return the jurors, bring the panel back in and put them in the position in which they were and then let the other jurors be seated in the spectator's section.

MR. GREENE: Your Honor, again, I'm not prepared to go forward with this case and I am going to indicate to the Court that the only remedy that I see that could be valid for my client is for me not to participate in this trial until a representative cross-section of the jury is called. Now, we—

THE COURT: Well, the Court orders you to go ahead with the trial, Mr. Greene. If you refuse, you'll be liable for contempt of Court.

MR. GREENE: Yes, sir, I understand that, sir, but even under the pale of that, I refuse to go forward on the basis that I think that I'm operating in the best interest of my client.

THE COURT: You're—you're refusing before this Court to go forward?

MR. GREENE: On the basis that I don't think that the—

THE COURT: I understand what your basis is. The Court has denied your motion. You're refusing to go forward with this trial:

MR. GREENE: Yes, sir, on the basis that I've stated.

THE COURT: All right, you be prepared to face the Court to show cause why you should not be punished for contempt.

MR. GREENE: Yes, sir.

THE COURT: And I'll set down a time for that hearing.

MR. GREENE: Yes, sir. May I request a jury for that, Your Honor?

THE COURT: You certainly may.

MR. GREENE: All right.

THE COURT: I think juries are allowed in—. I—let me before I make a final decision on that basis, there is some limitation as to when a jury is allowed. I'll let you know this after we've recessed.

MR. GREENE: Yes, sir.

THE COURT: But I want you to fully understand the consequences of this. The Court considers this a very serious contempt of the Court for you to refuse to go forward. This is not the way to approach this sort of thing. You're an officer of the Court and I see no excuse for your behavior.

MR. GREENE: Yes, sir. But Your Honor must recognize that I do have ethical responsibilities to protect my client's rights and as I said before, I do not think that the relief which could possibly be granted, i. e., to the right of appeal or to other post-conviction remedies would be sufficient to protect his rights and I have to take this stand.

THE COURT: All right, Mr. Greene, you know the chance you're taking. I'll set down a hearing for contempt of Court. Return the jury, please.

Transcript of Commonwealth v. Bullock, Jan. 18, 1973, pp. 13-16.

On February 3, 1972, a hearing was held on motions in petitioner's criminal contempt case. At this hearing, the Court indicated that there appeared some confusion, for which the Court conceded some responsibility,¹ regarding the nature of the upcoming proceeding. Judge Tucker went on to state that petitioner had been held guilty of contempt on the morning of the Bullock trial and that the upcoming hearing would go only to punishment.

On February 8, 1972, a second motions hearing was held. At that time the Court indicated that a hearing with regard to the suspension of petitioner's right to practice before the court would be held sometime after the upcoming "purge" hearing. The Court also reiterated its finding that petitioner had already been held in contempt. On motion of counsel, the Court went on to indicate for the first time the two specific subsections of Virginia's contempt statute for the violation of which petitioner had been found guilty and that a single punishment was contemplated for both violations. Transcript of Hearing of February 8, 1972, pp. 72, 76. Finally, the judge denied a motion that he disqualify himself.

By letter of February 18, 1972, the Court ruled on petitioner's motion for a jury trial which had originally been made at the Bullock trial and was re-raised at subsequent hearings. Judge Tucker stated that "since the Court is willing at this time to assure Mr. Greene that any punishment that might be imposed would not be in excess of six months in jail and a $500 fine," the motion for trial by jury was denied.

Petitioner's final evidentiary hearing was held on March 1, 1972 before Judge Tucker. Motions which had been made at the previous hearings were renewed, including the motion that Judge Tucker disqualify himself; for the Court to grant petitioner a plenary hearing on the question of his guilt or innocence on the contempt; for the Court to grant petitioner a trial by jury and for the Court to declare unconstitutional §§ 18.1-292 and 18.1-295 of the Virginia Code. All of these motions were denied by the Court and exceptions were noted. The hearing was then held with Mr. Greene as the only witness.

In its final ruling, the Court indicated that it considered the order to Mr. Greene on January 18 to go forward with the trial a lawful one, and one with which Mr. Greene, as an officer of the court, was bound to comply. The Court found that petitioner had not purged himself of the contempt of which he had previously been found guilty. The Court then imposed a punishment of a fine of five hundred dollars ($500.00) and a ten (10) day jail sentence. The jail sentence was suspended upon the condition that petitioner in all future dealings with the Court, conduct himself in a manner befitting an attorney and an officer of the court.

Petitioner's initial contention is that the trial court's denial of a plenary hearing to determine guilt constituted a denial of due process. Although Va. Code Ann. § 18.1-292 appears to authorize summary proceedings for certain specific acts of contempt whether committed within or outside of the presence of the court, the acts committed by petitioner in this case were not only committed in the presence of the court but were elaborated upon to the court each step of the way. Thus the trial court's action in this case is similar to action under Rule 42(a), Federal Rules of Criminal Procedure, which allows summary proceedings when the purported contempt is committed in the presence of the court.² Petitioner here does not appear to challenge the constitutionality of all such summary adjudication of contempt. See Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 1341 (1952); Johnson v. Mississippi, 403 U. S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971). Rather, he alleges that if the contempt is such as does not require immediate citation and punishment, then summary proceedings are unjustified. In interpreting Rule 42(a), the United States Supreme Court has rejected this reasoning:

The Rule in question contemplates that occasions may arise when the trial judge must immediately arrest any conduct of such nature that its continuance would break up a trial, so it gives him power to do so summarily. But the petitioners here contend that the Rule not only permits but requires its instant exercise, so that once the emergency has been survived punishment may no longer be summary but can only be administered by the alternative method allowed by Rule 42(b). We think "summary" as used in this Rule does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and

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