has no other tangible assets. Defendant Reed has represented that he earns $ 28,000 a year, has no other tangible assets, and was in bankruptcy as recently as 1986. Defendant Anderson has represented that he earns $ 26,000 a year, has no tangible assets except two cars with a total value of $ 2,300, and is already $ 8,000 in debt. Defendant White has represented that he earns $ 27,000 a year, is $ 20,000 in debt, recently had his car repossessed, and has no other tangible assets. Finally, defendant Kelley has represented that he earns $ 43,000 a year but his business has recently filed bankruptcy. He does own a home, but it has a $ 220,000 mortgage on it. Thus, based on this financial information and the record in the Pro-Choice Network case, the Court determined that civil contempt was not a feasible option in this case.
Besides, while the Government may decline to accept the responsibility of prosecuting the criminal contempt charges against defendants Reed and Anderson, it does not have the authority or discretion to unilaterally determine that these defendants should be prosecuted civilly rather than criminally. The Court has independent authority to initiate criminal contempt proceedings against those who violate its orders. As the Supreme Court stated in Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787 (1987), "the ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches. . . . Courts cannot be at the mercy of another Branch in deciding whether [criminal contempt] proceedings should be initiated." Id. at 796. Thus, once the Pro-Choice Network plaintiffs brought the motion for contempt, it was up to the Court to determine whether the defendants should be prosecuted for criminal rather than civil contempt.
Here, the Government, in its supporting affidavit to the "Motion to Dismiss," opines that prosecution of defendants Reed and Anderson, under the circumstances present here, would be "a misuse of prosecutorial discretion." However, under Young, the Government does not have "prosecutorial discretion" in this instance. The Court has already initiated criminal contempt proceedings against Reed and Anderson and, absent some evidentiary or legal issue that would bar prosecution, these proceedings must go forward.
If the Government disagrees with the Court and believes that Reed and Anderson should not be prosecuted for criminal contempt, it has the prerogative to decline to prosecute them. Id. at 801. However, under Young, the Court may then appoint a private attorney to prosecute the contempt. "The ability to appoint a private attorney to prosecute a contempt action satisfies the need for an independent means of self-protection, without which courts would be 'mere boards of arbitration whose judgments and decrees would only be advisory.'" Id. at 796 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911)). Thus, "courts have long had, and must continue to have, the authority to appoint private attorneys to initiate [criminal contempt] proceedings when the need arises." Id. at 800-01. It is clear that in this case, the need has arisen.
In sum, the Court interprets the Government's "Motion to Dismiss" and supporting affidavit as a declination to prosecute defendants Reed and Anderson in this action. The Court will therefore appoint two private attorneys ("Special Prosecutors") to prosecute the criminal contempt charges in this case.
Rather than appointing the Special Prosecutors to prosecute only defendants Reed and Anderson, sound judicial administration dictates appointing them to prosecute all five defendants in this action. Because all five are alleged to have violated the Preliminary Injunction on the same day and under the same circumstances, judicial economy and common sense militate in favor of trying all five of them in one trial. However, having two sets of prosecutors in one trial could result in a duplication of efforts, possible conflicts, and confusion on the part of the jury. Having two separate trials is also an unattractive option. Such a procedure could result in unnecessary delay, duplication of efforts, inconsistent results and a waste of judicial resources. Thus, the Court will relieve the U.S. Attorney's Office from any responsibility in this action and appoint two Special Prosecutors to prosecute the criminal contempt charges against all five defendants.
In addition to the reasons cited above, the Court finds that the interests of justice will be better served by appointment of Special Prosecutors in this case. In so doing, the Court is not unmindful of the reluctance of the Government to prosecute this action as against all five defendants. As stated earlier, at defendants' arraignments, the Court gave clear and explicit instructions to the Government regarding certain procedural matters. The Court ordered the Government to file a written notice, pursuant to Rule 42(b), against all five defendants charging them with criminal contempt under 18 U.S.C. § 401. It also ordered that the notice be captioned in a certain manner. The Government instead filed a notice and criminal information against only three of the defendants and charged them with criminal contempt under 18 U.S.C. § 402. In addition, the notice and information contained a different caption and an incorrect date of the offense.
When taken separately, these deviations from the Court's clear and unambiguous orders are, for the most part, insignificant. However, when taken together, they clearly show a pattern of indifference to this Court's orders. The Court was never put on notice of any problem with, or need for clarification of, its orders. If the Government had some questions about or problems with the Court's directives, it should have brought them to the Court's attention by making the appropriate motion. The Court is neither inflexible nor infallible and, given an opportunity and adequate reason, could have either clarified or changed its orders. Instead, the Government embarked upon an entirely different course of action without any advance notice to the Court. Such actions, under the circumstances present here, risk undermining the public's confidence in the justice system. Thus, the interests of justice require the appointment of Special Prosecutors in this case.
The Court is also troubled by the assignment of an inexperienced prosecutor as lead counsel in this case. Criminal contempt proceedings of the type involved here are uncommon and present special procedural and substantive issues not normally presented in criminal prosecutions. Even an experienced prosecutor would likely wrestle with the many difficult and unique issues that may arise during the course of this action. In Young, the Supreme Court recognized the importance of having experienced prosecutors in criminal contempt proceedings. The Court held that a trial court should ordinarily first request the U.S. Attorney, rather than a private attorney, to prosecute a criminal contempt action so as to "enhance the prospect that investigative activity will be conducted by trained prosecutors. . . ." 481 U.S. at 801-02.
In this case, however, an Assistant U.S. Attorney who has only been an attorney since January of this year, and who has never tried a case as an attorney in any court, let alone federal court, has been assigned as lead counsel.
While he may be a promising litigator, the Court considers the alleged violations of its Preliminary Injunction to be a serious matter. The wilful violation of a court order strikes at the very heart of our justice system. "If a party can make himself [or herself] a judge of the validity of orders which have been issued, and by his [or her] own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls 'the judicial power of the United States' would be a mere mockery." Gompers, 221 U.S. at 450. Whether the defendants in this case are ultimately found guilty or not is of no importance to this Court. All that is important is that justice be done. As the Supreme Court stated in Young:
The need to vindicate a court's authority is . . . satisfied by ensuring that an alleged contemnor will have to account for his or her behavior in a legal proceeding, regardless of whether the party is ultimately convicted or acquitted. A court's ability to institute a contempt proceeding is therefore essential to the vindication of its authority in a way that the ability to determine guilt or innocence is not.
Young, 481 U.S. at 796 n.8. Justice will not be done if defendants are acquitted simply because they were tried by an inexperienced prosecutor trying his first case. While the U.S. Attorney is certainly free to assign to this case any assistant he chooses, his assignment of an inexperienced attorney as lead counsel raises concern with this Court. Thus, the interests of justice favor the appointment of Special Prosecutors with prosecutorial experience.
For the reasons stated, the Court interprets the Government's "Motion to Dismiss" and supporting affidavit as a declination to prosecute defendants Reed and Anderson, and it is hereby
ORDERED that the U.S. Attorney's Office is relieved of its responsibilities in this action, and it is further
ORDERED that the May 6, 1992 notice and information filed by the Government are dismissed, and it is further
ORDERED that Michael A. Brady, Esq. and Daniel C. Oliverio, Esq. are appointed to prosecute the criminal contempt charges against all five defendants in this case, and it is further
ORDERED that the U.S. Attorney's Office turn over all videotapes, witness statements, investigative reports and other evidence in its possession, with the exception of anything that can be classified as attorney work-product,
to the Special Prosecutors by July 6, 1992, and it is further
ORDERED that the status conference scheduled for June 29, 1992 is adjourned until July 6, 1992, at 4:00 p.m., at which time a new trial date will be set, and it is further
ORDERED that the Special Prosecutors file a new written notice, pursuant to Rule 42(b), by July 9, 1992 and that the new notice should charge the defendants with criminal contempt under 18 U.S.C. § 402,
and it is further
ORDERED that the caption on the new notice and on all future filings in this case shall read:
In re criminal contempt proceedings against Joseph J. Slovenec, Jeffrey L. White, Pastor Joseph G. Kelley, Kenneth W. Reed and James F. Anderson.