Kinlein, In re

• Decision Date: 03 July 1972
• Docket Number: No. 642,642
• Citation: Kinlein, In re, 292 A.2d 749, 15 Md.App. 625 (Md. App. 1972)
• Parties: In the Matter of the Citation of Richard J. KINLEIN.
• Court: Court of Special Appeals of Maryland

Page 625

15 Md.App. 625

292 A.2d 749

In the Matter of the Citation of Richard J. KINLEIN.

No. 642.

Court of Special Appeals of Maryland.

July 3, 1972.

William W. Greenhalgh, Rockville, for appellant.

Raymond J. Kane, Jr., Sp. Atty., Ellicott City, with whom was Francis B. Burch, Atty. Gen., on the brief, for appellee.

Argued Before MURPHY, C. J., and MORTON, ORTH, CARTER and GILBERT, JJ.

ORTH, Judge.

Richard J. Kinlein, the State's Attorney for Howard County, was held to be in contempt by a two judge panel presiding in the Circuit Court for Howard County for the reason that he violated an order of that court prohibiting counsel participating in the criminal cause of State of Maryland v. H.Rap Brown, pending before it, from making 'any extrajudicial statement which is or tends to be prejudicial to a fair trial.'¹He was fined $350 and costs.He appealed.We affirm the judgment.

I

The case against Brown originated in Dorchester County.A true bill returned by the Grand Jury for that county was filed in the Circuit Court there on 14 August 1967.The indictment, signed by William B. Yates, II, the State's Attorney for Dorchaster County, consisted of three counts charging Brown with crimes committed on or about 24 July 1967.It presented by the first count that he'* * * feloniously, wilfully and maliciously did set fire to and burn, and cause to be burned, and aid, counsel and procure the burning of the Pine Street Elementary School * * *', by the second count that he did riot, and by the third count that he did incite to riot.The case was removed for trial to the Circuit Court for Harford County by order of 17 July 1968(Mace, J.).By order of 18 March 1970(Dyer, J.) it was removed to the Circuit Court for Howard County.On 23 March 1970the Circuit Court for Howard County issued the order with which we are here concerned.On 21 April there was a hearing on a motion challenging the sufficiency of the indictment.The motion was granted as to that part of the first count which alleged that Brown aided, counseled and procured the burning.It was denied as to the remainder of the first count and as to the second and third counts.

On 14 January 1971 the Montgomery County Sentinel, a weekly newspaper published in Montgomery County, Maryland, carried a news article under the byline of its reporter, Bob Woodward, in which were extensive quotations attributed to Kinlein about the Brown case, Yates and William H. Kunstler, an attorney representing brown.Woodward had called Kinlein on 6 or 7 January to find out if Brown's bail had been forfeited because Brown had not been seen since 7 March 1970.Kinlein suggested Woodward call Yates, the chief prosecutor in the case.In a lengthy conversation Yates filled Woodward in 'on some of the background on the bond, and the case, and what the charges were, and what happened and some of the dates.'During this conversation Yates was reported as saying, 'I held the felony count to get him on the FBI Most Wanted List.'Woodward was 'astounded and confused.I did not know the significance of it * * *.'Woodward called Kinlein and asked him what Yates meant.What Kinlein said was set out in the news article.He told Woodward that Yates had privately admitted the arson charge was 'developed' in the event Brown skipped.Kinlein was 'surprised' that Yates was now admitting the arson fabrication to the press.Kinlein said: 'The fabrication of the arson charge is deplorable . . . a complete preversion of the system.* * * Yates is an ass and you can quote me.'The article read, 'Eastern Shore Bail Bond Service which is not licensed by the State put up $10,000 for Brown.John T. Moton is the bondsman.His 1970 Cadillac and a motel which is mortgaged 'to the hilt' have a judgment placed on them for the $10,000 bond, according to Kinlein.The judgment on the Cadillac and motel was made in Kinlein's Howard County.The money would go to Dorchester County according to Kinlein who suspects it has not been collected because 'I got the impression Yates and Moton (the bondsman) are in cahoots."²Yates had mentioned that Kunstler 'created the violence by his conduct.'Kinlein said, 'I agree that Kunstler helped the violence, and Yates threw gasoline on it.Kunstler is a polished grandstander, and Yates is an incompetent grandstander.'The article continued: 'Suggesting that Yates stood for some sort of counter-revolution, Kinlein said that, 'The counter-revolution is as dangerous as the revolution'.* * * Kinlein said that the charges against Brown were the only case he had seen in nine years which he would rather defend than prosecute.Besides the arson charge, Kinlein said that inciting a riot is part of the 'phony indictment."

As a result of the Sentinel article Brown moved to dismiss the arson charge.There was an evidentiary hearing on the motion on 7 and 8 May 1971, Macgill, C. J.The court denied the motion.

On 2 July 1971the Circuit Court for Howard County ordered that Kinlein show cause why he should not be adjudged in contempt of court because the remarks made by him 'are, or tend to be, prejudicial to a fair trial of the said pending case and were made in violation of the prohibition laid upon him by the said order of this Court.'The remarks designated by the order were '* * * certain statements to the effect that William B. Yates, State's Attorney for Dorchester County, who had drawn the indictment in said case, had admitted that he had 'fabricated' a certain count in the indictment, and that 'the fabrication of the arson charge is deplorable . . . a complete perversion of the system'; and that he, Richard J. Kinlein, would rather defend than prosecute the case and that the charge in said indictment of inciting a riot was a part of the 'phony indictment' * * *.'On 20 August Kinlein filed an 'Affidavit of Defense'.He moved the dismissal of the citation in the Affidavit of Defense and by a separate motion.

At a hearing on 30 August 1971, a two judge court, Evans, J. and Melvin, J., ruled that the Affidavit of Defense was insufficient in law ³ and denied the motions to dismiss the citation.It also heard and denied a motion for a jury trial.The citation was heard on the merits on 18 and 19 October.On 20 October the court found that Kinlein was 'guilty of contempt of Court for violation' of the order of 23 March 1970 and sentence was imposed.

II

Ordinarily when there are restrictions imposed by a court on the uttering and publishing of extra-judicial statements relating to a pending case the ultimate question is whether the application of them violates the right to freedom of speech.Then the constitutional prohibition against abridging the freedom of speech and the constitutional guarantee of a fair trial are in opposition.The problem of conflict in such circumstances between the two constitutional rights has been solved in this jurisdiction by the adoption of the clear and present danger doctrine, with its concomitant requirement of establishing prejudice, set out in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 67 A.2d 497, as the constitutional test.Here, however, Kinlein makes no claim that his freedom of speech was abridged by the order; he presents no question of freedom of speech vis-a-vis a fair trial.⁴Thus there is no problem of conflict and the clear and present danger doctrine is not invoked.In this connection we are constrained to observe that we feel that the utterances of Kinlein were without the bounds of permissible free speech in any event.We do not construe the first amendment clause as affording protection to a public prosecutor's statements which are false and inflammatory, threatening the fairness of a criminal trial in which he is to participate.

In denying the motion to dismiss the indictment the lower court found the statements made by Kinlein to be false in material aspect.A transcript of the proceedings of that hearing is included in the record before us, filed as defendant's exhibit No. 1.The question before the hearing judge was whether the arson count in the indictment returned against Brown 'should be dismissed on the ground it was a fabricated charge and was made simply for the purpose of bringing the FBI into the case in the event that the defendant should not show up for trial.'The judge found the evidence insufficient to warrant the relief prayed.He made factual findings.He found that the evidence did not show that Yates 'ever said that he had fabricated the charge of arson for the purpose stated or for any purpose.'He found that the words 'fabricated' and 'phony' were used by Kinlein in talking to Wood-ward.He found that the arson charge left in the indictment had not been 'fabricated' by Yates.He said:

'It is difficult for me to believe, gentlemen, Mr. Kinlein's version of what was said; if he had heard the extraordinary announcement which he said that he had heard, he has given, so far as I am aware, no reasonable explanation as to why he nursed this knowledge of an admission of an unlawful thing for such a long time, without confronting Mr. Yates with it, or divulging it to Mr. Garrity (Assistant Attorney General) or to any member of the Office of the Attorney General, or to the Court.When he did announce it, it was mentioned to a representative of the county newspaper in an objoining county in the course of answering an inquiry about the forfeiture of a bail bond.I cannot speculate and will not speculate as to the reason or impulse which led to these circumstances.'

At the contempt hearing Kinlein, testifying in his own behalf, admitted making, in substance, the statements as reported in the newspaper article.And on cross-examination he said that to the best of his 'recollection, knowledge and belief' the words Woodward attributed to him were accurate.But he admitted that Yates never told him he had 'fabricated' the count, or that he had 'developed' the count, or that the indictment was 'phon...