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WISE v. CITY OF BINGHAMTON
May 18, 2004.
WILLIAM WISE, PLAINTIFF,
THE CITY OF BINGHAMTON; MICHAEL SENIO, Police Officer, sued in his individual and official capacity; CORY MINOR, Police Officer, sued in his individual and official capacity; JAMES MAERKL, Police Officer, sued in his individual and official capacity; and JOE AND JANE DOE SUPERVISORY AND NON-SUPERVISORY POLICE OFFICERS, in their official and individual capacity, DEFENDANTS
The opinion of the court was delivered by: NORMAN MORDUE, District Judge
Pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure and
18 U.S.C. § 401(1), the transcript*fn1 annexed hereto and
incorporated herein, and the facts outlined below constitute the Court's
recitation of the facts:
On May 10, 2004, Earl Butler, counsel for the individual defendants in
the above-captioned case, objected to plaintiff's counsel's line of
questioning. After the Court overruled Mr. Butler's objection, Mr. Butler
sat back down in his chair, swung around, away from counsel's table
toward the back wall, to the individuals behind him, and said,
"Jesus Christ, do you believe that" in a voice loud enough to be heard by
the Court, the courtroom deputy, the law clerk, and the court security
officer, who was seated across the courtroom next to the jury. The Court
stopped the proceedings and inquired as follows: The Court: What did you say?
Mr. Butler: What did I say?
The Court: I'm asking you. I think I heard you
say something. You were unhappy with
my ruling. Did I hear you say Jesus
Christ, do you believe that?
Mr. Butler: I don't know what you heard, Judge.
After dismissing the jury, the Court called Mr. Butler to the bench
and informed Mr. Butler that he was going to be held in contempt for
making the statement, and that the Court was going to check the statute
to determine the punishment:
The Court: Counselor, can you stay in the
courtroom a minute, please. Mr.
Butler, I'm going to hold you in
contempt. I'm just not sure what I'm
going to do here. I heard Jesus
Christ, do you believe that. I just
asked my law clerk if she heard it.
She heard it and my courtroom deputy
heard it also. I don't know what your
problem is but I'm going to hold you
in contempt. I'm going to check the
statute right now what the punishment
would be. It was done in my presence
in the courtroom. Don't do it again.
Mr. Butler: Well, if I did it, Judge, I won't do
The Court then assured Mr. Butler that there was going to be a penalty
and that it was going to hold him in contempt. After a short break, Mr.
Butler informed the Court that he thought he had been talking to a client
in a whisper, and asked whether the microphone at counsel's table was on,
and stated that he believed they were:
The Court: . . . Just for the record, the marshal
also heard you say it, too, sir, in
case you had some question.
Mr. Butler: The marshal's office?
The Court: The marshal right there.
Mr. Butler: Sitting right here?
The Court: Yes. He heard it, too. I don't know
what your problem is but I hope we are
not going to hear anymore of it during
the course of this trial.
Mr. Butler: Judge, you wouldn't have heard this
one, I don't think. I thought I was
talking to a client and I thought I
was doing it in a whisper.
The Court: You have a stage whisper.
Mr. Butler: Are these things on, Judge?
The Court: I hope they are. Mr. Butler: Well, I mean, if these are on we can't
talk to our clients without everybody
in the whole building hearing about
it. I don't think that's the way it
ought to be.
Two days later, after the jury returned its verdict, the Court called
Mr. Butler to the bench regarding the contempt matter, and asked if Mr.
Butler if there was anything he would like to say. Mr. Butler said he
would like to make a statement. Mr. Butler then stated as follows:
Mr. Butler: First of all, there was no intent on
my part to obstruct or in any way
interfere with the Court's proceedings
here. And, quite frankly, the comments
that were made were supposedly made in
a private conversation with two of my
clients after I turned my seat around
from the counsel table and were, I
thought, said in a very low voice but
I think, unfortunately, the sound
pick-up system here, which was on,
picked those comments up and broadcast
them throughout the courtroom which I
didn't know would happen. Of course, I
didn't even know the system was
working at that time. At least from my
point of view, they were comments made
to my client, regardless of the nature
of them or what was said.
And so under the circumstances, I
don't feel that there was anything
contumacious about anything that I
said or anything that I did. I think
that it was unfortunate that it was
picked up that way. It was-quite
frankly, I didn't realize anything was
going on until your Honor announced
again over 1 think the loud
speaker here that you had heard what I
said and I couldn't quite frankly
believe that anybody could have heard
what I said, except my client.
The Court: Well, not only myself, the marshal
heard it, the courtroom deputy heard
it and my clerk heard it.
Mr. Butler: Well, I can understand after analyzing
the thing that if it went out over the
speaker, everybody could of heard it
but the fact remains my clients didn't
even hear barely what was said
The Court: I don't know that it went I'm
not impressed, to be honest with you,
counselor, it came over that. You were
leaning back to your right talking to
the gentleman behind you in the corner
chair there and so it wasn't directed
toward even if anything, it
was directed toward the back wall.
Mr. Butler: It was.
The Court: You were upset with my ruling is what
it was. . . .
Mr. Butler: I don't recall I said
something to the effect this was a
The Court: No, you said, clear as a bell. Mr. Butler: You tell me what I said.
The Court: I will tell you what you said. You
said, Jesus Christ, do you believe
Mr. Butler: That's what I said. All right.
The Court: That's what you said.
Mr. Butler: When I'd say that obviously I
was being critical of your decision
but I don't think there's anything
contumacious about being critical of a
decision that's made by the Court.
Certainly it was not made with
The Court: When it's that language, you know.
Mr. Butler: What language, Judge? That's what I
The Court: Jesus Christ, can you believe that.
Mr. Butler: Well, Judge, I don't see, based upon
my knowledge of things here, that
there's anything wrong with saying
Jesus Christ. There certainly is
nothing that anybody can ever say that
you're being contumacious because you
take the name of the lord in vain, at
least I've never heard that.
So, in any event, there was no intent
on my part to do anything. If, in
fact, it did impact on the
proceedings, and I don't even think
that it impacted on the proceedings,
except with your Honor.
The Court: I think it impacted. . . . It was
clear. It was inappropriate and
I've heard what you have to say.
After offering Mr. Butler an opportunity to be heard, and having
considered Mr. Butler's arguments, the Court held Mr. Butler in contempt
for stating "Jesus Christ, do you believe that" in response to an adverse
ruling by the Court in a voice loud enough to be heard by individuals
throughout the courtroom, and ordered him to pay a fine to the Clerk of
the Court in the amount of $250.00, by 5:00 p.m., May 14, 2004.
The Court's consideration of Mr. Butler's arguments, if anything, only
reconfirmed the Court's decision to hold Mr. Butler in contempt. Mr.
Butler's delayed assertion that the only reason the Court heard his
comment was because of the sound system, is baseless. It is abundantly
clear to the Court that the reason Mr. Butler's disruptive comment was
heard by individuals throughout the courtroom, was because Mr. Butler,
who was not facing the microphone, uttered his contempt for
the Court's ruling in a condescending and loud tone as he displayed his
obvious disgust for the Court's ruling. The Court finds that Mr. Butler's assertion that there is not "anything wrong with saying Jesus
Christ. There certainly is nothing that anybody can ever say that you're
being contumacious because you take the name of the lord in vain, at
least I've never heard that.", is equally preposterous. It should be
manifestly apparent to an experienced trial lawyer like Mr. Butler, that
his tone, volume, and choice of language were wholly inappropriate for
the decorum of the courtroom. If such conduct does not warrant an order
of contempt, then Rule 42(b) of the Federal Rules of Criminal Procedure
and 18 U.S.C. § 401 are nothing more than "toothless tigers". The
Court finds Mr. Butler's misbehavior was willful, contumacious, and
wholly disrespectful to both the order of the courtroom and authority of
the Court. Accordingly, the Court held Mr. Butler in contempt, and fined
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