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February 27, 1995



The opinion of the court was delivered by: KEVIN THOMAS DUFFY


 This is a motion to vacate a finding of contempt against Joseph Smukler, a lawyer who had been engaged in the trial of George G. Santa Maria v. Metro-North Commuter Railroad, 91 Civ. 1239 (KTD) which commenced on January 23, 1995. The facts underlying the contempt are fairly simple. All counsel who regularly appear in the Southern District of New York are aware that in arguing evidentiary rulings they cannot, state, before the jury, things as fact without proof nor even an expectation of proof. The contemnor continued to violate this rule throughout the trial and also engaged in other improper courtroom antics. Additionally, Mr. Smukler appeared as trial counsel in this case despite the fact that he is not a member of the bar of this district. This, along with other improprieties which will be discussed below, formed the background for the contempt finding.

 Joseph Smukler was held in contempt on the morning of the fourth day of the trial. Mr. Smukler wished to dispute an evidentiary ruling by arguing that he had knowledge that the facts as given by the witness were not true. He did not ask for a side bar, but rather, argued directly to the jury, as if in summation, facts that clearly were not part of the record.

 Since this occurred at the time for the morning break, I determined that I would hear the argument outside the hearing of the jury rather than to continue to expose them to the contemnor's impermissible arguments.

 For the many years that I have been on the bench, I have always instructed counsel to remain seated while the jury enters and leaves the courtroom. This practice is occasioned because of an incident which occurred before I became a judge. *fn1" This trial was no different. On every occasion in which there was a break, I excused the jury and instructed counsel for both parties to sit or remain seated. Thus, what Mr. Smukler did on the fourth day of trial is all the more egregious.

 What actually happened is not adequately shown by the cold record. The contemnor, after receiving the contrary ruling from the court let out a grunt of exasperation throwing out his hands and looking at the jury. Although directed to sit down by me, he chose not to do so and, instead, momentarily blocked the jury's path to make sure that they were aware of his exasperation. The first juror in line found his way around Mr. Smukler. As the other jurors were filing from the jury box, Mr. Smukler was again told to sit down. Again he refused to do so. He finally sat down only after being directed to take his seat for a third time and the court advised the Marshal to assist him to sit down. In fact, he had continued standing in place as the jury left while the Marshal had to walk some thirty-five to forty feet to escort him to his seat.

 The entire display was obviously intended to cause a mistrial in the case since the contemnor, working for a contingent fee, clearly understood that his case was being lost by his own ineptitude and lack of understanding of the rules of evidence, unpreparedness, and general lack of competence.

 My determination as to Mr. Smukler's desire to obtain a mistrial is based not only on his demeanor, but also on the fact that during the cross-examination of his own witnesses, he was caught as he continually sought to signal them what answer was to be provided to the cross-examiner's question. This was done by Mr. Smukler nodding yes and no to obtain either an affirmative or negative answer from the witness. *fn2"

 After holding Mr. Smukler in contempt pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, I gave him the opportunity to compose himself prior to imposing sanctions and took the usual morning break. Since I had a real question as to Mr. Smukler's competence, I determined that it would be fair to permit him some type of representation and asked about the availability of C.J.A. counsel on duty that day. Clearly it appeared to me that a court should not impose a sanction on a lawyer, or on anyone else, without hearing from the person to be sanctioned or his lawyer as to what explanation there may be, if any, for the sanctionable conduct.

 Upon returning to the courtroom, I advised Mr. Smukler that C.J.A. counsel would be available to him. Mr. Smukler's only desire at that time was to obtain a mistrial of the case and he argued that he had "never been threatened with contempt, never, ever, ever" in the forty or fifty times he had tried cases in this District.

 He also indicated the person with him at counsel table was not a member of the Bar. Over the lunch recess, I initiated a search to see if Joseph Smukler had ever been admitted to the Bar of this court. I had expected that anyone who had tried forty to fifty cases in this court would have been so admitted. The Clerk advised me, half-way through the afternoon session, that Mr. Smukler was not so admitted. I permitted the trial to continue as I had the entire case file and docket sheet searched to determine if Mr. Smukler had been admitted pro hoc vice. He had not been so admitted. In fact, he stated he had never been admitted to the Bar of this court and contended there was no reason for him to be admitted pro hoc vice, apparently since nobody had questioned him the years during which he practiced in this court without admission. He even suggested there was no need for a pro hoc vice motion because the court had impliedly given him permission by allowing him to appear at a pre-trial conference.

 At the end of that Thursday, January 26, 1995, I advised the jury to return the following Monday. I further told Mr. Smukler that he could not continue with the case since he was not a member of the Bar of this court and directed him to have counsel of record present to continue the case on Monday. By this time Mr. Smukler had met the C.J.A. attorney on duty and had decided to obtain private counsel. He requested that the question of sanctions be put over. I agreed to hold off until the next day.

 The matter was adjourned to the following morning to permit Mr. Smukler time to consult with private counsel. On Friday, January 27, 1995, Wendy Fleishman, Esq., from Skadden, Arps, Slate, Meagher & Flom appeared in court and requested a further adjournment of the sentencing of Mr. Smukler which was granted. Counsel also argued that Mr. Smukler had "a right" to continue the trial of the Santa Maria case. When it was pointed out to counsel that this meant that anyone, no matter how untrained in the law would have a right to appear as counsel in any case in this District, the argument was dropped ...

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