A Massachusetts appellate court has affirmed a 90 day jail sentence for a criminal defense lawyer, Barry Wilson, who engaged in a several minute long tirade against a judge during the empanelment of a jury. (Opinion here.) The lawyer's outburst was the result of the judge's willingness to seat a juror who had a long history in law enforcement.
Here is the exchange that led to the finding of contempt and the 90 day sentence:
The Court: "Mr. Wilson --"
Wilson: "No, we're not going to say wait. We're not going to say wait. You excused a juror because she's got two kids 20 and 21, and this guy's got 15 years --"
The Court: "Mr. Wilson --"
Wilson: "-- of law enforcement."
The Court: "Mr. Wilson --"
Wilson: "And you're going to sit him."
The Court: "Listen, if you --"
Wilson: "Lock me up now. Just lock me up and declare it a mistrial. I'm not sitting with that guy on this jury. No way."
The Court: "Mr. Wilson --"
Wilson: "No way. No way am I going to try a case with that man. That's ridiculous. Fifteen years a federal agent and he's going to be unbiased. Are you kidding me? I can't do it. I won't do it. Take my ticket. I don't really care. This is just plain ridiculous. Ridiculous. I'm going to sit there with a federal agent who says that he's not going to believe his fellow officers, are you ridiculous. You gotta be. You gotta be. I can't try the case and I won't. I will not."
The Court: "Well, I'm afraid you're going to have to try the case."
Wilson: "Oh, I don't think so. I can't. I'm not looking -- I can't. I can't. How can I look at my client and say he should think this is legitimate after you make a ruling like that and you excuse a woman who had two children, and that's enough excuse? You think I would ever let a woman -- whatever that man is -- sit on it."
Wilson next screamed at the judge:
Wilson: "And the other thing is I think maybe if he's [juror 35] standing outside there you better go ask him if he heard me screaming, because I think you gotta excuse him now 'cause I think he knows I don't like him."
The Court: "Mr. Wilson, is there some reason that I should not hold you in contempt?"
Wilson: "Judge, you can do what you wish to do, but I have news for you. How could you expect me to do anything different? A young man is on trial for his life, and a juror goes bye-bye. I can -- I said that I had a decision. I made decisions.
"A juror is not there, and then I -- exactly everything I predict is going to happen and then it happens, and you want me to say that's okay and tell my client he should feel okay and tell my client that it's [on] the up-and-up and that it's all fine.
"You can hold me in contempt. You could send me [to] Nashua Street right now. I'll go with my client and maybe we can get a cell together and maybe you could declare a mistrial and then we can start over again because I am not -- I am not going to try a case in which as far as I'm concerned the Commonwealth doesn't have a shot to be except by -- except by police officers going and leaning on people and getting the changed stories.
"And now I'm going to put in the box a man who spent fifteen years in Homeland Security, and I'm going to think that my client is going to get a fair trial? I don't think if they came up and they asked to put me in the box that any prosecutor in their right mind would think that I should sit there.
"This is just, just wrong. You can do whatever you wish to me, but this is just wrong."
The Court: "All right. Thank you, Mr. Wilson. I've heard enough.
"I do hold Mr. Wilson in contempt. I find that his behavior is loud, insulting, disrespectful behavior. The loud voice being at least partially intended so the jurors may hear him, including the juror who is presumably waiting outside the door, is disruptive to the Court proceedings. And I am going to hold him in contempt, and I am going to sentence him.
"However, I'm going to defer the sentencing until a later date. I respect the defendant's right to have counsel of his choosing try the case, so I'm not going to interfere with that. Mr. Wilson will be expected to continue to defend Mr. Jackson, and at the conclusion of the case I'm going to sentence him appropriately.
"He is held in contempt, and those are my findings."
Wilson: "You can't do that. You can't do that because what I'm going to put on record right now is you going to send me to jail, but if I act like a good boy, maybe I'll only go to jail for a few days. If I act like a bad boy, then I'll go to jail for a few weeks or a few months, or whatever time I don't know.
"But in any event, what we have is now I have to consider whether or not I can do the right thing by my client or can I do the right thing by me. Will I go to jail or won't I go to jail or how long I go to jail.
"So what I suggest is I can't represent my client. You've held me in contempt now."
The Court: "Take [juror 35] upstairs. We'll break for five minutes. We'll resume. I'll bring the jurors down. I'll excuse them for the day. If there's any other legal matters that have to be taken up this afternoon, I'll do that then. We'll recess for five minutes."
Wilson: "I'm not done. I'm not done. Let the record reflect that I cannot represent my client anymore because I've been held in contempt and the condition of my contempt will not be decided until the Court -- the trial is over. And I cannot make a determination based -- I cannot conduct myself in a manner that I'm supposed to or not supposed to, but I cannot be a zealous advocate and within the propriety of what my responsibilities are under the code of professional ethics because I don't know.
"Right now I have to worry about me instead of worrying about my client, and if I got to worry about me instead of my client, then I can't worry about my client, then I can't do my job because under the code my first responsibility is to my client."
The Court: "All right. Five minute recess."
Two questions. First, does the conduct warrant a contempt finding? Second, assuming that a finding of contempt was reasonable, is three months in jail an appropriate sentence?
Regarding the first question, I tend to agree with the court that a contempt finding was reasonable. As the court noted, the lawyer's outburst appears to have been intended to force a mistrial or the dismissal of the juror (because the juror, who had been moved to the hallway, could hear the yelling lawyer).
But on the second question, I think the punishment is quite disproportionate to the offense. What do you all think?
(Thanks to my colleague, Gabe Teninbaum, for the pointer.)
Just from the transcript, I'd think a mental health evaluation would be more appropriate than jail time...though that might be beyond the scope of a contempt hearing. Hopefully the state bar gets involved. He's either not well, or he's reached some point in his life/career where he just doesn't care anymore.
Posted by: mt45 | March 27, 2012 at 11:16 AM
The conduct of both was egregious and should be sanctioned: the judge for seating a juror with a 15-year law enforcement history and the lawyer for yelling and disrespecting the court. Sentence the judge to a similar 90-day period in jail.
Posted by: daveck | March 27, 2012 at 12:13 PM
The contempt finding was right on, regardless whether I am sympathetic with his legal position. There are ways you handle that within the rule of law. But this guy just "lost it" and courts simply cannot tolerate that.
Ultimately, he did his own client a disservice by being held in contempt, and gave the Court the high ground. How did that help his client? As a trial lawyer of 33 years, I've been disgusted by some of the changes in laws which tilt the playing field away from justice and the consumer, but I am still committed to working within the rule of law. Sorry, can't give him a pass on this conduct. As to the amount of punishment: it seems a bit severe. 90 days is a looong time.
Posted by: Claude Ducloux | March 27, 2012 at 12:22 PM
I've never heard of simply being employed in law enforcement as cause for automatic recusal. Not all law enforcement types are close-minded racists, despite the impression you might get from law blogs and law blog comments sections.
Posted by: mt45 | March 27, 2012 at 12:38 PM
I agree with everything that has been posted, but I would not want that guy with 15 years at homeland security on my jury, and the lawyer's behavior does seem pretty calculated. Still, ninety days? Either this is not his first infraction or the Judge wanted to get the case tried badly for some reason and defense counsel badly did not want to be the one trying it.
Give me a cell with my client?! Uh, no, thanks, not an argument you will ever hear me make.
The bar needs to have him evaluated.
Posted by: Richard | March 27, 2012 at 01:47 PM
The lawyer did not disobey an order from the judge saying that disobedience would result in criminal contempt. What the lawyer did that justified contempt was purposefully tainting the jury pool by raising his voice so one or more jurors could hear him; that was an obstruction of justice.
The lawyer was certainly correct about having to withdraw because of a conflict of interest, created by the judge holding the length of the lawyer's sentence pending until the end of the trial.
I think it would have been more appropriate for the judge simply to have referred the matter to a disciplinary authority.
Similar examples of lawyer's defying judges, and without adverse action, are give in ULE sec. 4.06 -- one of them celebrated as "a noble stands for the independence of the bar."
Posted by: Monroe Freedman | March 27, 2012 at 03:19 PM
What would be wrong with 1) asking for a continuance for an interlocutory appeal of the decision; 2) moving for a judge disqualification and recusal for bias; 3) failing both, reserving the objection for a future appeal?
You do not roll around in the mud with these judges. These are little Caesars and worthless government workers. They surround themselves with thugs with guns. I am surprised the lawyer did not get Tasered. And always file a complaint with the Judicial Review Board after every adverse utterance. File one a month so that the judge is under perpetual investigation.
Posted by: David Behar, MD, EJD | March 28, 2012 at 02:19 AM
Fuit assault per prisoner la condemne pur felony que puis son condemnation ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit Indictment drawn per Noy envers le Prisoner, & son dexter manus ampute & fix al Gibbet, sur que luy mesme immediatement hange in presence de Court.
Posted by: Rick Underwood | March 28, 2012 at 05:47 PM
I was held in federal "civil contempt" 3 times for 5 months. I didn't mouth off at all and wasn't even accused of contempt in the presence of the court. There was a contempt of court hearing that was pre scheduled and that was the first time I met the judge because there were no other hearings and no trial. Before the court hearing, I filed a motion to get the procedure to be used but that was denied. I was accused of filing pro se papers in other courts without permission from the first judge, who had dismissed my section 1983 complaint without writing an opinion. He also ordered me to pay $100 K to various lawyers who didn't file rule 11 motions and lawyers who didn't even file a notice of appearance or papers in my case. There weren't any Rule 11 (c)(6) orders. At the civil contempt hearing I was told that I didn't have a right to an attorney not to an evidentiary hearing. There wasn't a sentence either. The judge was former judge Edward Nottingham and it later came out that when he was in charge of my case he was hiring prostitutes at least once a week and calling them on his court cell phone. The judge and the defense counsel dictated motions I was required to file in other courts under threat of re imprisonment.
I have pursued this for years, since the original case involved defamation and affected my ability to earn a living and because I feel that I must stop the courts from doing this to other people. I finally got USMS records that show that they entered non existent felony charges into the Warrant Information Network. Also I have a claim under The Privacy Act 5 USC section 552a subsection e(4)(B), because 2.) In the Federal Register publication about the JABS system, Volume 66, Number 78 on Pages 20478-20480 [2001] the only category of individuals on whom records are to be maintained in the JABS system is “alleged criminal offenders”.
I originally sued a convicted drug dealer who was my neighbor and also the city council president. I sued the city too -- Steamboat Springs CO. His wife had me criminally charged without a statement of probable cause. She signed a criminal summons in capacity as a police officer even though she wasn't a cop. The police report showed that I accused her and her husband of violating the constitution and the zoning while I was standing on the street in front of my home in the afternoon. Unfortunately, I filed this complaint before the S.C. recognized the tort of First Amendment Retaliation through criminal prosecution without probable cause in Hartman v. Moore. The extra buildings that he built aren't on the property tax rolls.
I had the opportunity to go to law school but chose not to. I tried to get my criminal defense lawyer to file a lawsuit for damages but he said he wouldn't because it would hurt his law practice. My lawsuit only made sense if I sued my neighbor's lawyer as well as him. He got a restraining order on me on the basis that there were pending criminal charges, even though they were eventually dismissed. My neighbor's wife followed me around town asking the police to arrest me whenever she saw me. There wasn't a statutory basis for the restraining order. This destroyed my life and really hurt my family and cost me a lot of money. I had to sell my house to my neighbor's lawyer because we couldn't live there safely and no one else would buy it. There was a bullet hole through my window but the police wouldn't investigate and an investment banker sent me an email saying that he was interested in my property but my neighbor threatened to shoot his children if he bought it and the children, who were under 5, wondered next door.
Posted by: kay sieverding | March 29, 2012 at 12:35 AM
wandered next door sorry
Posted by: kay sieverding | March 29, 2012 at 12:36 AM