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In re Dellinger

decided: September 6, 1974.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 CR 925. EDWARD T. GIGNOUX, Judge.

Fairchild, Cummings and Pell, Circuit Judges. Fairchild, Circuit Judge, concurring.

Author: Cummings

CUMMINGS, Circuit Judge.

This appeal is from the second criminal contempt adjudication resulting from incidents occurring during the celebrated "Chicago 7" Anti-Riot Act conspiracy trial. The substantive convictions were reversed. United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), certiorari denied, 410 U.S. 970, 35 L. Ed. 2d 706, 93 S. Ct. 1443. We also reversed the original contempt convictions. In re Dellinger, 461 F.2d 389 (7th Cir. 1972).

Pursuant to 28 U.S.C. ยง 292, the Chief Justice of the United States thereafter designated District Judge Gignoux to try the contempt case.*fn1 On the remand various pre-trial motions were denied. In re Dellinger, 357 F. Supp. 949 (N.D. Ill. 1973). At the trial, the Government's case-in-chief consisted of the introduction of the transcript of the Anti-Riot Act trial. After the Government rested, the district court acquitted John Froines and Lee Weiner and dismissed a number of contempt specifications against the remaining defendants in an unreported memorandum opinion dated November 6, 1973. The defendants' renewed motion to dismiss was denied in the same opinion. Thereafter, the remaining defendants testified in their own behalf. In rebuttal the Government offered evidence to refute testimony of a defense witness that the "defense camp" had been subjected to surveillance by military intelligence officers during the Anti-Riot Act trial. At the close of all the evidence, defendants Leonard Weinglass, Rennard Davis and Thomas Hayden were acquitted. Judgments of acquittal were also entered as to several of the contempt specifications against the remaining defendants. The district court found David Dellinger, Abbott Hoffman, Jerry Rubin and William Kunstler guilty of various other contempts but did not impose any fines or sentences. In re Dellinger, 370 F. Supp. 1304 (N.D. Ill. 1973).

Whether Lawyer Kunstler Was Contemptuous

The first argument on appeal is that Kunstler's conduct described in Kunstler specification VI does not constitute contempt of court. This specification is set out at 370 F. Supp. at 1337-1338*fn2 and need not be quoted herein. The matter complained of in specification VI consisted of an extended outburst from Mr. Kunstler, one of the attorneys for the defendants, after Judge Hoffman, the trial judge in the conspiracy case, refused to relieve Kunstler of his commitment to conclude his case with the testimony of an authenticating cameraman, plus certain documents. Thus Mr. Kunstler was prevented from presenting the Reverend Ralph Abernathy as a witness for the defendants.

We agree with Judge Gignoux that the extent and violence of Kunstler's diatribe and the bitterness and anger displayed "constituted a vicious personal attack on the judge which could only have served to vent his spleen." 370 F. Supp. at 1319. In no way can Kunstler's remarks be considered as merely heated legal argument and therefore non-contemptuous. Because of the extreme nature of the attack on the trial judge, the remarks of counsel created an imminent prejudice to a fair and dispassionate proceeding, thus constituting an actual and material obstruction of the judicial process. See 461 F.2d at 400. Moreover, as the trial judge found, Kunstler's conduct "resulted in an entirely unnecessary and not insignificant delay and disruption of the proceedings" (370 F. Supp. at 1320), reinforcing his holding that there was an actual and material obstruction of the administration of justice. Before concluding with respect to this specification, it should be noted that at their close, Kunstler's remarks predictably precipitated shouts of "right on" and applause, again satisfying obstruction standards.*fn3 461 F.2d at 399-400.

Kunstler's specification VII (reproduced at 370 F. Supp. at 1338-1341) is also said not to constitute contempt of court. After Judge Hoffman had ruled that Reverend Abernathy not be permitted to take the stand, he ordered defense counsel not to make any reference before the jury to the fact that defendants wanted Abernathy to testify. Kunstler replied he would not abide by such a ruling and therefore would have to be sent to jail. Despite the trial judge's order, when Dr. Abernathy arrived Kunstler said he would like to put him on the stand. Kunstler continued to mention Dr. Abernathy's name and hugged him before the jury. The facts under this specification are clearly contempt because Kunstler violated a court order. Further, he obstructed justice by putting before the jury information that had been ruled inadmissible, making it more difficult for the jurors to decide the case according to the law as interpreted by the district judge. As we previously held, lawyers are required to obey even incorrect orders; the remedy is on appeal. 461 F.2d at 398.

Kunstler argues that because he got away with violating it once, there was no longer an operative order prohibiting his mentioning Dr. Abernathy to the jury. In our judgment, this is frivolous. Kunstler's renewal of his motion to call Dr. Abernathy as a defense witness in the presence of the jury and his persistent arguments after being directed to stop clearly violated Judge Hoffman's orders to make no reference before the jury to the fact that he and his colleagues wanted Dr. Abernathy to testify and not to renew his motion. Since the specification quotes Judge Hoffman's orders verbatim, there could be no doubt what Kunstler was charged with violating. Therefore, we are not "sustaining the trial court by treating the conviction as a conviction upon a charge not made." Eaton v. City of Tulsa, 415 U.S. 697, 699 94 S. Ct. 1228, 39 L. Ed. 2d 693, 42 LW 3538; see also Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897, 42 LW 5180, 5183-5184.

Whether Messrs. Dellinger, Hoffman and Rubin Were Contemptuous

The non-lawyer defendants contend that the nine specifications involving statements made by them at the Anti-Riot Act trial and the two specifications involving wearing judicial robes by Abbott Hoffman and Jerry Rubin do not constitute contempt.

The statements in question delayed the trial, thereby satisfying the obstruction requirement. Although in some of the specifications, one or two sentences may have been justified, each specification contained an extended colloquy not required by the circumstances. As Judge Gignoux stated with respect to Dellinger IV (reproduced at 370 F. Supp. at 1327), in light of the extent of these Dellinger comments at the Anti-Riot Act trial and their offensive character, he knew or should have known that his conduct was wrongful, and his interruptions "so disrupted the course of the proceedings that an unnecessary and not insubstantial delay ensued." 370 F. Supp. at 1312. Similar permissible findings were made with respect to Dellinger V, VI, VII, VIII, IX and X (reproduced at 370 F. Supp. at 1328-1335, 1341-1342).

As to Abbott Hoffman's specification VI and Jerry Rubin's specification V (reproduced at 370 F. Supp. at 1344-1347), the district court was justified in concluding that these defendants' persistent interjections occasioned a substantial delay in the progress of the proceedings and constituted misbehavior in the presence of the court. 370 F. Supp. at 1314-1315.

Hoffman specification VII and Rubin specification VI (set out at 370 F. Supp. at 1347-1348) involved the wearing of judicial robes by those defendants at the February 6th morning session of the Anti-Riot Act trial. As the district court found, the Anti-Riot Act trial transcript disclosed that this conduct occasioned an entirely unnecessary and not insignificant delay in the proceedings. 370 F. Supp. at 1315. The seriousness of this misbehavior supported the district court's conclusion that the conduct constituted ...

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