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WISE v. CITY OF BINGHAMTON

United States District Court, N.D. New York


May 18, 2004.

WILLIAM WISE, PLAINTIFF,
v.
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

CONTEMPT ORDER

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 it again.
  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 lousy —
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 that.
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 — with any —
The Court: When it's that language, you know.
Mr. Butler: What language, Judge? That's what I can't understand.
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 him $250.00.

  IT IS SO ORDERED.


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