APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN K. MILLER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Appellant, an attorney, appeals from a judgment entered in the criminal division of the circuit court of Cook County holding him in direct criminal contempt of court for leaving the courtroom during court proceedings contrary to and in violation of a direct order of the court. The court entered a finding of contempt and at a subsequent hearing entered an order nunc pro tunc adjudging appellant to be in direct contempt of court, and imposing a fine of $100.
The sole issue presented for review is whether the action of the attorney-appellant in departing the courtoom during court proceedings for the reason that he did not wish to participate in such proceedings in a death penalty case without the presence of the client was conduct sufficient to constitute a direct contempt.
The following facts are undisputed. On February 8, 1980, proceedings were in progress in the criminal division of the circuit court of Cook County in the case of The People of the State of Illinois v. John Bailey, et al. This case involved 16 defendants charged with, among other offenses, 15 counts of murder for the deaths of three prison guards arising out of the July 22, 1978, prisoner rebellion at Pontiac Correctional Facility. Appellant, an attorney, was appointed by order of court to represent Joseph Smith, one of the prisoners charged with the murders for which the State sought imposition of the death penalty. Appellant was one of 16 attorneys, including those for the defense and prosecution, appearing before the court on this date. Following the taking of roll to determine that all attorneys were present, the court began to address various matters which included the scheduling of pretrial motions, the timetables for submission of points and authorities, and in general the court's guidelines regarding the scheduling of hearings on pretrial matters. At this time the defendants, who were all in custody, remained locked up outside the courtroom. After several minutes the following discussion occurred:
"MR. HAAS: Judge, my client has not waived his appearance for this hearing and I don't know why the Defendants should not be here for this.
THE COURT: This is not a hearing. The Court is announcing rules of Court and schedules.
MR. HAAS: Judge, I think the Defendants are entitled to know that, too. I don't understand why they should not be here for this.
As far as my client goes, he has not waived his appearance.
THE COURT: Fine. These are non-[sic] matters that do not affect the rights of clients but they do affect counsel."
Following this dialogue, the court continued to announce certain timetables and address conflicts of schedules with the attorneys present. One of the defense counsel then brought to the court's attention the matter of possible exculpatory notes taken by one of the prosecutors, which had not been turned over to the defense. After some discussion between the court and defense counsel as to whether the motion dates should be extended because of the newly found statements, the prosecutor gave an explanation for failing to provide such statements. Another defense counsel then requested that the defendants be brought into the courtroom but the court advised him that the discussion on the matter was finished. Nevertheless the discussion was renewed by several counsel, turning then to the question of whether sanctions would be imposed against the State for this, and any future incidents that might occur. This question was resolved. The discussion thereafter turned again to the scheduling of dates for motions. About an hour had elapsed since the start of the day's hearing. Then, while still outside the presence of the defendants, the court permitted an attorney from the Department of Corrections to file a motion to quash subpoenas for psychological reports. At this point appellant and another defense attorney renewed their requests to have defendants brought into the courtroom. In response the court indicated that the mere filing of a motion was a procedural, not a substantive matter. The court then embarked on discussions with appellant and other counsel regarding the setting of the hearing on the motion to quash, advising counsel of the date, and further hearing from another defense counsel as to whether subpoenas would be necessary to secure parole files for discovery by defendants. At this point the following exchange began between counsel for another defendant and the court:
"MS. MURPHY: Your Honor, for the record, I will not proceed with the proceedings as long as my client is not allowed to be in the courtroom because I think that he should be a party, too. Therefore, I am going to — for the record, I am going to leave the courtroom until they are brought into these proceedings.
THE COURT: I am ordering you not to leave the courtroom.
MR. HAAS: I will also do the same thing.
THE COURT: I am ordering you not to leave this courtroom.
MR. HAAS: Judge, I cannot represent my client in good faith without ...