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February 22, 1985


The opinion of the court was delivered by: SWEET


This proceeding is before the court on remand following a reversal of a contempt conviction and sentence imposed upon Chokwe Lumumba ("Lumumba"), a lawyer, arising out of his conduct during the trial of USA v. Shakur, et al., 82 Cr. 312, (the "Brinks case") in which Lumumba successfully defended his client, Bilal Sunni-Ali ("Sunni-Ali"). It raises critical issues concerning the control of the trial process, the role of defense counsel, and the allocation of the responsibility for review. Upon the findings and conclusions set forth below, a judgment of conviction under Fed.R.Cr.P. 42(b) will be entered.

The court has been directed on remand to conduct this proceeding, something less than "a full-blown trial," to permit Lumumba a reasonable opportunity to defend or explain his actions or present arguments in mitigation " in connection with a criminal contempt which the Honorable Kevin T. Duffy found to have been committed in the course of the Branks case." Motions with respect to the proceeding were heard on October 19, and December 21, 1984 and opinions were filed on November 26, 1984 and January 3, 1985 and evidence was presented during the week of January 28, 1985 and on February 4, 1985. On the entire record, I find that contempts were committed as found by Judge Duffy and that Lumumba's defense, explanation, and mitigation are unavailing.

 Prior Procedings

 The Brinks trial lasted from April 4 to September 4, 1983. Six defendants were charged with serious crimes, ranging from conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ยง 1961 et seq. to murder in the commission of an armed robbery. Five of the six were found guilty of certain of the charges. Lumumba's client, Sunni-Ali, was acquitted. The transcript consists of over 12,000 pages.

 Judge Duffy found Lumumba in contempt on two occasions during the trial, the first on April 13, during voir dire, and the second on June 8, during colloquy concerning the admissibility of certain evidence. In between these two findings there were numerous occasions when statements were made by Lumumba which Judge Duffy noted after the trial and which the government has characterized as disruptive. See Memorandum and Order of Judge Duffy, filed September 6, 1983. Judge Duffy's Memorandum and Order, supra, set forth the events justifying the contempt citations and certified, pursuant to Fed.R.Crim.P. 42(a), that the events took place in his presence.

 Following the filing of his memorandum and order, which by its terms constituted a conviction, Judge Duffy declined to sentence Lumumba, and the proceeding was assigned to me for that purpose. A hearing in connection with the sentence was held on October 27 and October 28, 1983 during which there was an oportunity [opportunity] for the presentation of mitigating factors, in the nature of a right of allocation, including a statement by Lumumba. Motions to dismiss and set aside the contempt conviction were heard and denied on November 17, 1983. On November 28, 1983 the imposition of sentence was suspended on both counts. Lumumba was placed on probation for three years and a condition of probation was the performance of 350 hours of community service during the first fifteen months of the probationary term.

 An appeal was taken and in an opinion of July 27, 1984 the Court of Appeals reversed the conviction and remanded for further proceedings, stating:

The principal issue raised is whether due process requires that a lawyer cited for criminal contempt for conduct occurring during trial must - before being finally adjudicated in contempt at the end of the trial - have notice and an opportunity to be heard. Since the answer to this question is "yes," and appellant was not afforded such due process rights, the judgment of conviction appealed from must be reversed.

 USA v. Lumumba, 741 F.2d 12, 13 (2d Cir.1984).

 Pretrial hearings were held on October 19 and December 21, 1984, and motions relating to the scope of the remand were heard and decided in memoranda filed on November 26, 1984 and January 3, 1985.

 The mandated hearing took place from January 28 to February 4, 1985. The government introduced the transcript and rested. The defense called Lumumba, William Kunstler, a well-known lawyer with extensive experience as defense counsel in difficult cases, John C. Brittain, a professor of law with a distinguished record including the defense of black defendants in Mississippi in the early 1970's, the Honorable Dalton Roberson, a judge of the Recorders Court of Wayne County, State of Michigan, Gloria HOuse, a professor of humanities at Wayne State University, and Victor Goode, an instructor at the City University School of Law in Queens and a former national director of the National Conference of Black Lawyers. In addition, an affidavit of Lynne Stewart, a co-counsel with Lumumba in the Brinks case, submitted at the time of the prior sentencing, was introduced over the objection of the government, which was not provided an opportunity for cross-examination of the witness.

 The Circumstances of the Trial

 The Brinks case had received wide publicity and by virtue of the nature of the charges and the number of defendants, and the pretrial proceedings, it was anticipated to be a long and arduous trial. Because of information received by the government, the security of the witnesses and the trial process was of concern, and persons entering the courtroom were searched. Marshals were also present throughout the trial. Indeed, a system had been devised for the making of objections by pressing a button which would turn on a light at the bench. The system was never employed.

 The pretrial proceedings had included an effort to disqualify Lumumba from serving as counsel to Sunni-Ali's spouse and a denial of his application for compensation under the Criminal Justice Act. Lumumba, a member of the Michigan bar since 1976 and an experienced lawyer who has participated in some eighty criminal jury trials, was admitted pro hace vice.

 Lumumba viewed the Brinks case as a political trial, which he and the witnesses he presented defined as a trial in which the defendants were charged as a consequence of their race, their political beliefs, and their associations, in addition to the more formal charges contained in the indictment. Both Lumumba and his client were supporters of the Republic of New Africa, ("RONA"), the tenets of which were considered in this court's opinion of November 17, 1983. Lumumba had participated in other trials which he considered political, and at the time of the Brinks case was the Minister of Justice of RONA. He believed that his advocacy in such a case had to be vigilant, zealous, and active. Lumumba was the only black lawyer serving as defense counsel.

 The First Contempt

 On april 13, the first day of the trial, the court was conducting an individual voir dire of the jurors in the courtroom. The court had determined that for security reasons the names and addresses of the jurors would not be revealed. Lumumba entered the courtroom after the proceedings had commenced and observed from outside the well of the court until a recess was declared, after which he joined the counsel table. While Lumumba was observing from the back, an issue arose concerning press reports about the jury's anonymity as a ground for disqualification. Jesse Berman, another defense counsel, rose to press the court on the subject, urging that all the jurors be questioned in greater detail on the subject. Berman's objections were overruled, (Tr. at 832). Shortly thereafter, Lumumba joined other defense counsel at counsel's table. (Tr. 849). Soon thereafter defense counsel Stern moved to challenge the entire panel, a motion that was denied. (Tr. 867).

 Immediately thereafter, Lumumba rose and moved to discharge the entire jury panel, as had Stern. Id. Judge Duffy denied the oral motion, advising Lumumba to put the motion in writing and stating that the written motion would be made a part of the record. The court had required all defense counsel to adhere to this procedure, including the attorney who addressed the court immediately before Lumumba. Nonetheless, Lumumba persisted in his effort to make his motion orally. (Tr. 867-69). When Judge Duffy attempted to move on to the peremptory challenges, Lumumba accused him first of unwillingness to hear the defendants' contentions and then of "tainting" and "polluting" the jury.

 Shortly after those remarks, Lumumba addressed the court again, this time contending that Judge Duffy was precipitate in excusing a black prospective juror who stated she could not fairly and impartially decide the case, and claiming that the court's prompt excusal of the juror was inconsistent with its handling of white veniremen. (Tr. 886-87) When the District Court noted that Lumumba had not been present for any of the preceding voir dire and ordered him to be seated and cease further argument, Lumumba refused and insisted he had other "appropriate" motions he wished to make immediately. The following interchange occurred:

THE COURT: Mr. Lumumba, sit down. Mr. Lumumba, I said sit down.
MR. LUMUMBA: I know your courtesy is a little better than that.
THE COURT: Sit down, Mr. Lumumba.
MR. LUMUMBA: That's the way you give dogs and children instructions. I had some other motions I want to make at this time.
THE COURT: Sit down.
MR. LUMUMBA: You are denying my motion before you hear them
MR. LUMUMBA: Is that what you are doing
THE COURT: I am telling you right now to sit down.
MR. LUMUMBA: Are you denying my motions ...

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