The Worst That Can Happen If You're Late To Court Just Got A Little Less Bad; the Fourth Circuit on Criminal Contempt For the Tardy
Robert Peoples is no stranger to car trouble.
After his release from prison, he brought three lawsuits against South Carolina prison officials for violating his civil rights.
On the day of jury selection for his civil rights suit, Mr. Peoples was late. The federal judge hearing the case told Mr. Peoples that he had to be in court the next morning by 9:30.
The next day, Mr. Peoples was late. The District Judge, Judge Currie, told him that if he was late again the case would be dismissed.
Mr. Peoples was on time the next day.
Though the day after that he called the courthouse fifteen minutes before he was supposed to be there. Mr. Peoples reported that he had a flat tire and that roadside assistance was on its way.
The district court, in an effort of largess that it would later regret, confirmed that Mr. Peoples had car trouble and dispatched the Marshals to give him a ride to court.
Judge Currie found that Mr. Peoples had left his house in time to get to court, but was delayed by an unanticipated event. The case was not dismissed for his failure to appear and prosecute the case.
The trial went on.
On April 12, sadly, Mr. Peoples was late again. The judge heard argument from the parties about whether to dismiss the case, then decided that Mr. Peoples was willfully late. Judge Currie dismissed the case with prejudice.
What Not To Do After Losing In Court
A person has a number of options when a judge rules against her. She can file an appeal. She can ask for reconsideration. She can decide it's tough marbles and go home.
Mr. Peoples did not pursue these options. Instead, according to the Fourth Circuit, he went into the
courtroom, and approached Deputy Clerk Sara Samsa, who was gathering jury certificates to bring to Judge Currie. Peoples interrupted Samsa and repeated several times, "Tell Judge Currie get the f--- off all my cases. I started to tell her something there. I started to tell her ass something today."
Although the audio of the recording is somewhat garbled, it also contains an additional statement from Peoples in which he tells Judge Currie to "straighten the f--- up" or "straight the f--- up."
(As an aside, I think this is a very dignified way of handling the profanity inherent in this opinion. One would expect such classiness from Judge Diana Motz.).
This caused quite a bit of trouble. Court security was called. Details of finishing the case's dismissal were delayed. The FBI was called to take a statement from the courtroom clerk.
Judge Currie issued a show cause order as to why Mr. Peoples shouldn't be held in contempt. Then Judge Currie recused herself from that proceeding, since the profanity had Judge Currie as its object.
The Varieties of Federal Criminal Contempt
There are two kinds of criminal contempt available to a federal judge - both are under Federal Rule of Criminal Procedure 42.
A 42(a) contempt proceeding is like a criminal trial - the person has a lawyer, has notice and opportunity to be heard, and a prosecutor is appointed.
A 42(b) proceeding is different. Rule 42(b) says that a court "may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies. . . ."
Mr. Peoples proceeding on his regrettable statements about Judge Currie was a 42(a) proceeding. He had a lawyer, notice of the charges, and a prosecutor was appointed.
Old Habits Die Hard
Sadly, Mr. Peoples had car trouble on his way to the contempt proceeding and was late. The judge said that there would be a second contempt proceeding on his tardiness after the first contempt proceeding.
He was found in criminal contempt on the first count having to do with his suggestions about how Judge Currie comport herself. (it's a fascinating read - please check out the opinion for how the court got there if you're interested)
With no break in the proceedings, but with a bit of time for Mr. Peoples to talk to his lawyer while court was still in session, the second contempt proceeding started.
Mr. Peoples was found in contempt of court in that proceeding.
A Summary Hearing
On appeal, in United States v. Peoples, the Fourth Circuit reversed that second contempt finding.
Because the procedural requirements of 42(a) weren't followed, the contempt finding was only allowable if it was a summary disposition for contempt.
And a summary contempt disposition is only allowable if it's for someone who does something contemptuous in the presence of the judge who issues the contempt order.
As the Fourth Circuit has said,
We, and the majority of our sister circuits, do not consider tardiness or absence from court to provide an adequate basis for summary disposition under Rule 42(b). See In re Gates, 600 F.3d at 339 (holding that mere tardiness, like failure to appear, does not occur "in the actual presence of the court" and therefore is not subject to summary punishment (internal quotation marks omitted)); see also In re Contempt Order, 441 F.3d 1266, 1268 (10th Cir. 2006) (explaining that attorney's failure to appear "by no stretch . . . occur[red] within the presence of the court"); In re Chandler, 906 F.2d 248, 249-50 (6th Cir. 1990) ("'A lawyer's failure to attend court is not a contempt in the presence of the court.'" (quoting United States v. Onu, 730 F.2d 253, 255-56 (5th Cir. 1984))); United States v. Nunez, 801 F.2d 1260, 1264 (11th Cir. 1986) (per curiam) ("[T]he majority of circuits which have considered the issue have concluded that counsel's tardiness or absence cannot be characterized as contempt in the presence of the court.").
So, Mr. Peoples second contempt finding could not stand and was reversed, even while his first contempt determination is still good.
If you're thinking about being late to court, think about Mr. Peoples. You may have your case dismissed against your wishes, but at least you can't be held in contempt on a summary disposition.