Attorney held in contempt

Rick Yencer, writing for the Muncie Star Press, has a follow up story on an attorney being incarcerated for contempt by a Jay Circuit Court judge acting, I believe, as a special judge in Grant County. Delaware County.

While seeking a change of judge, attorney Louis Denny had filed an affidavit on behalf of his client who has been charged with bribing a witness. The affidavit alleged that the judge, Brian Hutchison, patronized a prostitute and had possessed marijuana. Judge Hutchison then jailed Denny last week.

Denney, who receives work release privileges during weekdays to maintain his law practice, filed a writ of habeas corpus, claiming he and Hinds were illegally incarcerated.

“If this was direct contempt, we had a right for another judge to determine whether we were held in contempt,” said Denney.

That action was denied Wednesday by Delaware Circuit Court 4 Judge John Feick, saying the writ was not procedurally correct, because notice was not given to other parties in the action.

Seems to me that the question is whether this is direct contempt or indirect contempt. The former seems to apply more to immediate disturbances while court is in progress — someone starts yelling in open court, for example. The sitting judge can take immediate action. The latter, indirect contempt, would seem to apply in this case. Indirect contempt comes with a number of procedural protections, including notice and an opportunity to be heard, and of particular relevance, it would seem, in this case, provision for appointment of a special judge to consider the contempt.

IC 34-47-3-8(c) states:

The court against which the alleged contempt has been committed shall, at the time the rule to show cause is issued, nominate three (3) competent and disinterested persons, each of whom shall be an available judge or member of the Indiana bar, to be submitted to the parties in the action, from which the state, by the attorney general, and the defendant shall immediately strike off one (1) name each.

This would seem to be an important protection against a pissed off judge who jails someone because his feelings are hurt. Obviously a court needs the power to make sure its proceedings are not directly interrupted, and it can continue functioning – that’s why the immediate, direct contempt powers are available to a judge in limited circumstances. But, beyond that, if someone makes defamatory and false allegations against a judge, he or she should certainly have recourse. But, it’s pretty easy for someone to make such allegations against you or me, but we don’t get to summarily throw the person in jail. We have to go through a cumbersome legal process. I don’t think the judge gets to take a short cut in this situation.

An important caveat here is that I’m going solely on the material reported in the newspaper. It’s possible that there are additional facts that would make immediate jailing appropriate. The next question is what remedy might be available against a judge who jails a lawyer inappropriately. Judges have an enormous scope of immunity for actions they take on the bench; appropriately so, in most cases. But, if hypothetically, this is a case of a judge abusing his power because he was personally affronted, instead of making an honest mistake while dispassionately attempting to apply the law, there ought to be a remedy.

(Note my bias here: I’m a lawyer who wants to be able to argue vigorously on behalf of my client without fear that I’ll wind up in jail for doing so. Not that I’ve ever come within shouting distance of accusing a judge of criminal activity.)

Update Here is a copy of the court’s order “finding direct criminal contempt.” (h/t Indiana Law Blog) According to the order, the contemptuous action was filing of “contumacious, salacious, and defamatory statements” that the judge did not have time to review until after close of business hours on November 5, 2008. So, the contempt did not occur in open court, one of the requirements of IC 34-47-2-1. In particular, one of the prerequisites for direct contempt is that the offending act occur while the court is “is open for and engaged in the transaction of business.”

Unless there is another basis of authority for a judge to impose a sentence for direct contempt of court for reasons which do not satisfy the requirements of IC 34-47-2-1, I just don’t see the basis for this judge’s exercise of authority. What am I missing?