Farmer v. Strickland Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit, Unit B

    No.

IN THE

Supreme dnurt o f the United States
OCTOBER TERM, 1981

MILLARD C. FARMER, JR.,
Petitioner,

v.
NOAHJ. STRICKLAND, Sheriff of 

Pierce County, Georgia,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT, UNIT B

DAVID E. KENDALL 
Counsel of Record
Hill Building 
Washington, D.C. 20006 
(202)331-5000

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER

Suite 2030
10 Columbus Circle
New York, New York 10019

JOHN R. MYER
1515 Healey Building 
Atlanta, Georgia 30303

RANDALL M. CLARK 
P.O. Box 384
Brunswick, Georgia 31520 

Attorneys for Petitioner



QUESTION PRESENTED FOR REVIEW
The Court should grant certi­

orari to consider whether petitioner, an 
attorney, was deprived of due process of 
law, as guaranteed by the Fourteenth 
Amendment to the Constitution of the 
United States, by being summarily 
adjudicated in criminal contempt of 
court on a preponderance of the evidence
rather than on evidence which estab-
1ished his guilt beyond a reasonable
doubt for objecting to racially
derogatory treatment of his client in
the courtroom.

-i-



TABLE OP CONTENTS

Dage
QUESTION PRESENTED

FOR R E V I E W ..............  i
TABLE OF AUTHORITIES . . . .  iv
OPINIONS BELOW ............  2
JURISDICTION ..............  2
CONSTITUTIONAL PROVISIONS

INVOLVED ................. 2
STATEMENT OF THE CASE . . . .  3
A. Proceedings Below . . . .  3
B. Statement of Facts . . .  5
REASONS WHY THE WRIT

SHOULD BE GRANTED........  14
CONCLUSION................  26

-iii-



PageCases:
Bloom v. Illinois, 391 U.S.

194 (1968).......................  16
Bollenbach v. United States,

326 U.S. 607 (1946)   19
Carafas v. LaVallee, 391 U.S.

234 (1968)....................   5
Craiq v. Harney, 331 U.S. 367

(1947)...........................  23
Crudup v. State, 218 Ga. 819,

130 S .E . 2d 733 (1963)    21
Drakeford v. Adams, 98 Ga. 722,

25 S.E. 833 (1896)..............  22
Eaton v. City of Tulsa, 415 U.S.

697 (1974)..................   25
Farmer v. Holton, 146 Ga. App.

101, 245 S.E.2d 457 (1978), 
cert, denied, 440 U.S. 958
(1979)....................... 4 , 11,

12, 20
Hamilton v. Alabama, 376 U.S.

650 (1964), rev'g Ex parte
Hamilton, 156 So. 2d 926
(Ala. 1963)     22

Holt v. Virginia, 381 U.S. 131
(1965) ................. . . . . .  23

Illinois v. Allen, 397 U.S. 337
(1970)...........................  25

In re Gault, 387 U.S. 1 (1967) . . .  16
In re Little, 404 U.S. 553

(1972) . . . . . . . . . . . .  24, 25
In re McConnell, 370 U.S. 230

(1962)........ ..............  23, 24 ,
25

TABLE OF AUTHORITIES

-iv-



24
In re Sacher, 343 U.S. 1 

(1952) .................
In re Winship, 397 U.S. 358

(1970) . .....................  16, 17 ,
18

Jackson v. Virginia, 443 U.S.
307 (1979)................... 17 , 18,

19
Johnson v. Virginia, 373 U.S.

61 (1963)   22
Mayberry v. Pennsylvania, 400

U.S. 455 (1971)   25
Stein v. Municipal Court of 

Sioux City, 46 N.W.2d 721 
(Iowa 1951) ................ 15, 16

Street v. Georgia, 429 U.S.
995 (1976) . . . . . . . .  ........  3

Street v. State, 237 Ga. 307 
227 S .E .2d 750 (1976), on 
remand, 238 Ga. 376, 233 
S.E .2d 344 (1977)   3

Taylor v. Hayes, 418 U.S. 488
(1974) ..............  . . . . . .  21

Witherspoon v. Illinois, 391
U.S. 510 (1968)  3

Statutes:
Ga. Code Ann. § 50-116 . . . . . .  4,5
28 U.S.C. § 1254 (1) (1976)  2
28 U.S.C. § 2254(b) . . . . . . . . .  4
Constitution:
Fourteenth Amendment ............  2,6

-v-



IN THE
SUPREME COURT OF THE UNITED STATES 

October Terra, 1981
No.

MILLARD C. FARMER, JR.,
Petitioner,

v .

NOAH J. STRICKLAND, Sheriff of 
Pierce County, Georgia,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT, UNIT B

Petitioner, Millard C. Farmer, 
Jr. , prays that a writ of certiorari 
issue to review the judgment of the 
United States Court of Appeals for the 
Fifth Circuit, Unit B, which affirmed a 
judgment of the United States District 
Court for the Southern District of 
Georgia denying habeas corpus relief to 
petitioner.



2

OPINIONS BELOW
The opinion of the court of 

appeals, reported at 652 F. 2d 427 (5th 
Cir. 1981), is printed in the Appendix 
to this Petition. A. la-54a. The 
opinion of the district court is unre­
ported and is printed in the Appendix to 
this Petition. A. 57a-66a.

JURISDICTION
The court of appeals filed its 

opinion and entered its judgment on Au­
gust 3, 1981. A copy of this judgment 
is printed in the Appendix. A. 55a- 
56a. On October 21, 1981, Mr. Justice 
Powell signed an order extending the 
time within which to file a petition for 
a writ of certiorari in this case to and 
including December 16, 1981. The juris­
diction of this Court is invoked under 
28 U.S.C. § 1254(1) (1976) .

CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Due 

Process Clause and the Equal Protection 
Clause of the Fourteenth Amendment to 
the Constitution of the United States.



3

STATEMENT OP THE CASE
A . Proceedings Belov;

Petitioner, a member of the
Georgia Bar, was twice found in contempt
of the Pierce County Superior Court
while he was representing an indigent,
black client at a hearing to determine
whether this client would be sentenced

1/to life or death for murder. These 
two criminal contempts occurred on Sep­
tember 14, 1977 (nunc pro tunc judgment 
entered on September 20, 1977) and Sep­
tember 22, 1977 (nunc pro tunc judgment

—  Petitioner's client, George Street, 
had previously been convicted of 
armed robbery and murder and had re­
ceived a death sentence for murder. 
Street v. State, 237 Ga. 307, 227 
S.E.2d 750 (1976). This Court re­
versed Street's death sentence, 
Street v. Georgia, 429 U.S. 99 5 
(1976), because of a jury selection 
procedure which was violative of the 
rule of Witherspoon v. Illinois, 391 
U.S. 510 (1968 ). The Georgia Su­
preme Court then remanded the case, 
Street v. State, 238 Ga. 376, 233 
S.E.2d 344 (1977), for the resen­
tencing hearing at which the two 
criminal contempts occurred. At the 
conclusion of this hearing, Street 
received a sentence of life impris­
onment.



4

entered on October 20, 1977), and peti­
tioner received consecutive sentences of 
one day and three days' imprisonment, 
respectively. Execution of these sen­
tences was stayed pending petitioner's 
appeal to the Court of Appeals of the 
State of Georgia, which affirmed peti­
tioner's convictions on May 4, 1978.
Farmer v. Holton, 146 Ga. App. 101, 245 
S.E.2d 457 (1978). After the Supreme
Court of Georgia denied certiorari in an 
unreported order entered on September 
14, 1978, this Court denied certiorari
on March 19, 1979. Farmer v. Holton,
440 U.S. 958 (1979) .

On March 28, 1979, petitioner
filed a federal habeas corpus petition
in- the United States District Court for2/the Southern District of Georgia.-  His

2 / .—  Petitioner met the exhaustion-of- 
state-remedies requirement of 28 
U.S.C. § 2254(b), since the consti­
tutional issues raised on habeas 
were expressly decided adversely to 
his contentions by the Georgia Court 
of Appeals. Farmer v. Holton, 146 
Ga. App. 101, 245 S.E.2d 457 (1978). 
Moreover, Ga. Code Ann. § 50-116 ex­
plicitly provides that a person 

(Continued)



5
motion for a stay of the execution of
his sentences was denied, and he served
his sentence of imprisonment for these 3/two contempts.-  The district court 
subsequently entered an order denying 
habeas relief and dismissing the peti­
tion. See A. 66a. Petitioner appealed 
from this August 18, 1979 order, and the 
United States Court of Appeals for the 
Fifth Circuit, Unit B, affirmed the 
judgment of the district court on August 
3, 1981. See A. 56a.

B . Statement of Facts
The relevant facts were set 

forth in detail by the court below, A. 
la-31a, and there is no need to repeat 
that description here in its entirety. 
The first finding of criminal contempt

imprisoned for contempt may not be 
discharged on habeas corpus by a 
state court if the sentencing court 
"has not exceeded its jurisdiction 
in the length of the imprisonment 
imposed."

— / The court below correctly held, 652 
F .2d at 429, A. 4a-5a, that, pursu­
ant to this Court's holding in 
Caraf as v. LaVallee, 391 U.S. 234
( 1968), this fact did not moot the 
habeas case.



6

occurred as a result of petitioner's 
objections to the district attorney 
calling petitioner's client by his first 
name on cross-examination. Petitioner 
contended that this was racially conde­
scending toward his client and was an 
expression of invidious discrimination 
forbidden by the Fourteenth Amendment, 
since all the other participants in the 
trial (who were white), including peti­
tioner, were addressed by the prosecu­
tion and by the court as "mister. "~r

— /  Petitioner stated at one point that 
"we will refer to our client George 
Street by his first name, because 
that's an affectionate way that we 
feel about him. And we've known him 
a period of time." This was a dec­
laration of how petitioner addressed 
his client in private conversations, 
and not in open court, for peti­
tioner never referred to his client 
as "George" during formal judicial 
proceedings. The court below none­
theless stated in its opinion, 652 
F .2d at 429, A. 5a, that petitioner 
himself referred to his client as 
"George" on direct examination. 
Petitioner subsequently filed a 
motion to correct the court of ap­
peals' opinion, averring that there 
was no factual basis in the record 
for this statement. The court 

(Continued)



7
In response to the trial judge's ques­
tion, "Are you going to allow us to 
proceed with the cross examination of 
this witness?" petitioner replied, "Your 
honor, I feel like in representing my 
client . . whereupon the court sum­
marily found him in criminal contempt 
and sentenced petitioner to one day's 
imprisonment.

'denied the motion, despite an affi­
davit from petitioner stating that 
he had never referred to his client 
by his first name in formal judicial 
proceedings. The court of appeals 
recognized that there was no tran­
script evidence of petitioner's use 
of his client's first name, but 
noted that: (1) at oral argument in 
the court of appeals, petitioner's 
counsel responded to the question, 
" [D]id Mr. Farmer refer to him 
[George Street] by his first name?" 
with, "Yes, he did, your Honor?" and 
(2) at his deposition in this case, 
Mr. Street responded to the ques­
tion, "What did Mr. Farmer call you 
during the trial?" with, "He called 
me by my first name." Neither of 
these responses, however, referred 
to what petitioner called his client 
during formal court proceedings. 
There is nothing whatsoever in the 
record to indicate petitioner called 
his client by his first name in open 
court.



8
The second summary adjudication 

of contempt occurred thirteen days 
later, during jury selection. In the 
morning, petitioner argued that his 
client was being subjected to racial 
discrimination in the courtroom because 
a racially differential standard was 
applied when jurors were stricken for 
cause, with black veniremen being more 
quickly excused. The trial court re­
fused to allow petitioner to present 
evidence concerning what petitioner 
alleged to be a racially discriminatory 
jury selection process. After lunch, 
the court did allow petitioner to call a 
black citizen who wished to attend the 
trial but who had been given a cryptic 
warning not to attend by her white 
employer. The court assured this woman 
of her right to attend the trial and 
asked her to report any threats or 
harassment to him. The court declined, 
however, to explore the issue further of 
whether blacks were being intimidated 
and prevented from attending the trial, 
whereupon petitioner made the comment 
which resulted in the second summary 
finding of contempt:



9

[Petitioner] : Your Honor, the
reason that we wanted to deal 
with it at this time is to 
point out to the Court, is that 
here are things that we are be­
ing able to show you and show 
the Court that's happening. We 
are not able to find out about 
everything that happens. We 
are only able to, I'm sure, 
know a very, very small part of 
what is happening. And, the 
Court has got to take correc­
tive action and • the Court has 
got to deal with this in a way 
that we've previously suggested 
in order that it will not hap­
pen. And, the Court has got to 
allow us to inquire into what 
the Court before lunch previ­
ously wants to cover up. And, 
that is the racism that exists 
that's effecting [sic] these 
jurors and effecting [sic] Your 
Honor . . .

MR. HAYES [the district attor­
ney]: Your Honor, the State



10

objects to the improper mali­
cious argument he's making on 
the Court.

THE COURT: All right, Mr. 
Farmer, the statement that the 
Court wants to cover it up is 
direct contempt of this Court, 
knowingly made by you. I have 
repeatedly warned you about 
this. Again you have sought to 
make that statement. The Court 
finds you in contempt of Court, 
sir, again. The Court senten­
ces you to 3 days in the 
[county jail].

The trial court's findings of contempt 
made no reference to the evidentiary 
standard by which petitioner had been 
found guilty.

On appeal, the Georgia Court of 
Appeals followed the settled law of that 
State that criminal contempt:

"is not, strictly speaking, a 
criminal case, but is only 
quasi-criminal. It is tried 
under the rules of civil



11

procedure, rather than under 
the rules of criminal proce­
dure, and a preponderance of 
evidence is sufficient to con­
vict the defendant, as against 
the requirement of removal of 
any reasonable doubt which pre­
vails in criminal cases."

Farmer v. Holton, supra, 245 S.E.2d at 
462. The court went on to hold that 
"the trial court's adjudication of con­
tempt will not be interferred [sic] with 
unless there is a flagrant abuse of dis­
cretion," and that "[i]f there is any 
substantial evidence authorizing a find­
ing that the party so charged was guilty 
of contempt, and that is the trial 
judge's conclusion, his judgment must be 
affirmed insofar as the sufficiency of 
the evidence is concerned." Ibid. 
While the court at one point in its 
opinion stated, "The cases here present 
criminal contempt clearly and beyond a 
reasonable doubt," ibid., the basis of 
its holding was clearly articulated in 
its ruling upon petitioner's motion for 
rehearing. That ruling stated, in its 
entirety, that:



12

Ibid.

tioner's 
criminal

Attorney Farmer takes 
issue with our holding that the 
standard of proof to be applied 
in contempt actions such as 
this is the civil standard of a 
preponderance of the evidence, 
insisting for the first time 
that this standard is contrary 
to the due process requirements 
established in Craig v. Harney, 
331 U.S. 367, 67 S.Ct. 1249, 91 
L .2d 1546 (1947). That case is 
not controlling since it turns 
upon First Amendment rights and 
the freedom of the press to 
make public comment on the ac­
tions of a judge, requiring a 
showing that the utterances 
created a "clear and present 
danger" to the administration 
of justice to merit punishment 
for contempt. We adhere to the 
authorities cited in the 
opinion.

The court below found peti- 
argument that his guilt of 
contempt should be established



13
beyond a reasonable doubt "somewhat 
appealing, [but] its appeal is only 
superficial." 652 F.2d at 434; A. 33a. 
Because the contempts had been committed 
in the presence of the court, "the sev­
eral standards of proof have no practi­
cal relevance," ibid.:

In Farmer's case, the 
facts of his courtroom conduct 
are undisputed. The judge per­
sonally witnessed all of the 
conduct which was punished as 
contumacious. When the con­
tempt occurs totally in the 
presence of the judge, there is 
no necessity for the production 
of evidence. Indeed, there is 
no burden of persuading the 
trier of fact as there is no 
fact finding process to be con­
ducted. Where the contumacious 
conduct is committed in the 
presence of the court in the 
immediate view of the judge, it 
is unnecessary for the court to 
apply any evidentiary standard 
of proof in order to summarily 
hold the contemnor in contempt



14

of court. In such cases, it is 
a question of law for the court 
to decide whether the courtroom 
conduct which is factually un­
disputed amounts to criminal 
contempt of court.

Ibid.

REASONS WHY THE WRIT SHOULD BE GRANTED
This case is important and 

worthy of the Court's consideration 
because a plainly wrong and unconstitu­
tional legal principle (that criminal 
guilt may be adjudicated on a prepon­
derance of the evidence) has been relied 
upon to justify punishment of constitu­
tionally protected conduct (objections 
by an attorney to racial discrimination 
in judicial proceedings). The court 
below confronted the issues presented on 
this record with candor and directness, 
but petitioner respectfully submits that 
it decided them incorrectly. What is at 
stake here is more than a single attor­
ney's disciplinary record, for this case 
presents important general issues rela­
ting to the constitutional protections 
which must be accorded defense counsel



15

as such counsel strive to vindicate the 
rights of their clients to be free from 
invidious racial discrimination.

As an initial matter, there can 
be no doubt that Georgia's rule that 
criminal contempt may be adjudicated 
upon a preponderance of the evidence 
because such a charge is only "quasi­
criminal" will not withstand scrutiny. 
It was no "quasi-criminal" jail in which 
petitioner served his sentence.
Georgia's rule is completely aberra- 

5/tional and plainly unconstitutional.

Appendix A of petitioner's brief in 
the court below, Farmer v. 
Strickland, No. 79-3908 (5th Cir.), 
sets forth the precedents in the 
federal courts and in the courts of 
thirty-four states and the District 
of Columbia requiring that criminal 
contempt be established beyond a 
reasonable doubt. In a few other 
states for which precedents are 
available, a "clear and convincing 
evidence" standard has been articu­
lated, but the courts of these 
States emphasize that a prepond­
erance of the evidence is insuffi­
cient. See, e ,g. , Stein v.
Municipal Court of Sioux City, 46 
N.W.2d 721, 724 (Iowa 1951): "[A]
mere preponderance of the evidence 

(Continued)



16
"[Cjriminal contempt is a crime in every 
fundamental respect," Bloom v. Illinois, 
391 U.S. 194, 201 (1968), and therefore 
"use of the reasonable-doubt standard is 
indispensable to command the respect and 
confidence of the community in applica­
tions of the criminal law." In re 
Winship, 397 U.S. 358, 363-64 (1970).
See also In re Gault, 387 U.S. 1, 27
(1967). Georgia's unique rule differs 
significantly from that of all other 
American jurisdictions, and for that 
reason alone, review in this Court of a 
criminal contempt conviction based upon
a preponderance of the evidence would be

. 6/warranted.
The court below recognized the 

"appeal" of petitioner's argument, but

in a contempt proceeding is not 
sufficient, as [the proof] must be 
of a clear, convincing and satisfac­
tory nature." The Georgia rule is 
unique.

— /  The evidentiary standard used to 
determine criminal contempt is par­
ticularly important in a case where 
the adjudication is summary and by 
the same judge who is subjected to 
the contumacious conduct.



17
deemed this "appeal" to be only "super­
ficial" since the contempt occurred in 
the presence of the court. For this 
reason, the court held, "there is no 
necessity for the production of evi­
dence," 652 F.2d at 434, A. 34a, and the 
evidentiary standard of proof applied by 
the trial judge is therefore irrele­
vant. Petitioner respectfully submits 
that this analysis is thoroughly erro­
neous, for it confuses the permissible 
sumnariness of the adjudication with the 
evidentiary standard which must be 
applied. Even if Judge Holton could 
constitutionally pronounce petitioner's 
guilt in the twinkling of an eye, the 
Constitution requires that judgment to 
be grounded upon evidence that estab­
lishes guilt beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S.
307 (1979), plainly so holds. This
Court ruled there that In re W inship, 
supra, required "the fact-finder's
application of the reasonable-doubt



standard 
added ) ,

443
18

m
U.S. at 316 (emphasis

7 /criminal case:— / "a

2/ In Jackson, the Court noted that, as 
in this case, "[t]he trier of fact . 
. , was a judge and not a jury. But
this is of no constitutional signif­
icance," _id_. at 317 n.8. The Court 
held that when a federal habeas 
petitioner claimed he had been 
convicted in a state court upon 
insufficient evidence, the federal 
habeas court must consider not 
whether there was any evidence to 
support a state-court conviction, 
but whether there v/as sufficient 
evidence to justify a rational trier 
of fact to find guilt beyond a rea­
sonable doubt, as required by In re 
Winship.

The Winship doctrine requires 
more than simply a trial rit­
ual. A doctrine establishing 
so fundamental a substantive 
constitutional standard must 
also require that the fact- 
f inder will rationally apply 
that standard to the facts in 
evidence. A 'reasonable
doubt', at a minimum, is one 
based upon 'reason.' Yet a 
properly instructed jury may 
occasionally convict even v/hen 
it can be said that no rational 
trier of fact could find guilt 
beyond a reasonable doubt, and 
the same may be said of _a trial 
judge sitting as jury.

(Continued)



19

defendant whose guilt was actually
proved by overwhelming evidence would be
denied due process if the jury was
instructed that he could be found guilty
on a mere preponderance of the evi-8/dence," _id_. at 320 n.14.-  There is on 
this record no doubt that Judge Holton

Id. at 316-317 (footnotes omitted) 
(emphasis added).

—  ̂ In a criminal case, if the fact­
finder has applied an improper evi­
dentiary standard, an appellate 
court may not simply re-examine the 
facts under the proper standard and 
affirm a judgment of conviction:

[T]he question is not whether 
guilt may be spelt out of a 
record, but whether guilt has 
been found by a [fact-finder] 
according to the procedure and 
standards appropriate for crim­
inal trials . . . .  [T]he be­
lief of appellate judges in the 
guilt of an accused, however 
justifiably engendered by the 
dead record, [may not be sub­
stituted for] the ascertainment 
of guilt by a jury under appro­
priate judicial guidance, 
however cumbersome that process 
may be.

Bollenbach v. United States, 326 U.S.
607, 614-15 (1946).



20
convicted petitioner Farmer upon a pre­
ponderance of the evidence, for such a 
standard was -- and is —  the plain lav/_9/of the State of Georgia.

The fact that Judge Holton 
observed directly the events for which

2/  The court below properly discounted 
the dictum of the Georgia Court of 
Appeals that the two incidents at 
issue in this case "present criminal 
contempt clearly and beyond a rea­
sonable doubt." Farmer v. Holton, 
supra, 24 5 S.E.2d at 462. As the 
court below recognized, "under 
Georgia lav/ a defendant who is tried 
for criminal contempt may be con­
victed on a preponderance of the 
evidence standard of proof." 652 
F . 2d at 434 , A. 32a-33a. As set 
forth supra, petitioner had a 
constitutional right to have the 
trier of fact pronounce his guilt on 
evidence that established such guilt 
beyond a reasonable doubt. 
Moreover, the Georgia Court of 
Appeals' statement was merely a 
rhetorical afterthought, for it 
plainly stated in its opinion 
denying rehearing that "[w]e adhere 
to the authorities cited in the 
opinion" that "the standard of proof 
to be applied in contempt actions 
such as this is the civil standard 
of a preponderance of the 
evidence." Farmer v. Holton, supra, 
245 S .E . 2d at 462.



21

he found petitioner in contempt by a 
preponderance of the evidence by no 
means forecloses the possibility of 
petitioner's having a defense to the 
contempt charges if the contempt had to 
be established to Judge Holton's satis­
faction beyond a reasonable doubt. 
Petitioner "might at least urge, for 
example, that the behavior at issue was 
not contempt but the acceptable conduct 
of an attorney representing his client; 
or he might present matters in miti­
gation or otherwise attempt to make 
amends with the court." Taylor v. 
Hayes, 418 U.S. 488, 499 (1974). Judge 
Holton's reliance on the preponderance- 
of-the-evidence standard necessarily 
pretermitted significant factual issues 
pertaining to petitioner's guilt. To be 
guilty of contempt in Georgia, a defen­
dant must commit some act which entails 
"interruption, disturbance, or hindrance 
to [the] proceedings" of a court, Crudup 
v. State, 218 Ga. 819, 130 S.E.2d 733 
(1963), and this act must be accompanied 
by an intent which contains "an element 
of criminality, involving . . . the 
willful disobedience of orders or



22

decrees made in the administration of 
justice," Prakeford v. Adams, 98 Ga. 
722, 25 S.E. 833 (1896). Georgia's 
peculiarly lax evidentiary standard for 
contempt allowed the imposition upon 
petitioner of criminal penalties when 
the requisite disruptive intent and 
"willfulness" were lacking.

This Court has squarely held 
that a black criminal defendant may not 
be held in contempt for refusing to 
answer a prosecutor or judge who 
addresses her by her first name. 
Hamilton v. Alabama, 376 U.S. 650 
(1964), rev'g Ex parte Hamilton, 156 So. 
2d 926 (Ala. 1963). See also Johnson 
v. Virginia, 373 U.S. 61 (1963). It is 
clear that if petitioner's client had 
refused to answer when addressed by the 
prosecutor as "George," a contempt con­
viction would not be sustained even if 
the beyond-a-reasonable-doubt standard 
had been applied by the trier of fact. 
Under the circumstances here, when peti­
tioner's client's life was quite liter­
ally in the balance, it is hardly self- 
evident beyond a reasonable doubt that 
petitioner was engaging in "willful"



23

behavior when he attempted to assert 
vicariously his client's constitutional 
right to be free from being condescend­
ingly addressed by his first name by an 
officer of the court during judicial 
proceedings.

Moreover, the preponderance-of- 
the-evidence standard applied by Judge 
Holton gave inadequate recognition to 
other federal constitutional protections 
which hedge the summary contempt power. 
This Court has held, Holt v. Virginia, 
381 U.S. 131 (1965); In re McConnell, 
370 U.S. 230 (1962), that a lawyer may 
not be cited for contempt simply for 
presenting legal arguments and conten­
tions. The test for criminal contempt 
is not the "vehemence of the language," 
Craig v . Harney, 331 U.S. 367, 376 
(1947 ), used by the lawyer but whether 
there is actual obstruction.

The arguments of a lawyer in 
presenting his client's case 
strenuously and persistently 
cannot amount to a contempt of 
court so long as the lawyer 
does not in some way create an 
obstruction which blocks the



24

judge in the performance of his
judicial duty.

In re McConnell, supra, 370 U.S. at
236 . For mere language to be contuma­
cious, it "'must constitute an imminent, 
not merely a likely, threat to the 
administration of justice. The danger 
must not be remote or even probable; it 
must immediately imperil.'" In re 
Little, 404 U.S. 553, 555 (1972).

It is not clear, under a proper 
evidentiary standard, that petitioner's 
conduct constituted actual obstruc­
tion. While such a hindrance of the 
court's functioning might occur through 
prolix and vociferous argument, see, 
e.g., In re Sacher, 343 U.S. 1 ( 1952),
the good-faith albeit intemperate pre­
sentation of an objection to racial dis­
crimination, well founded in the 
decisions of this Court and plainly 
relevant to issues at the trial, is, 
arguably, not actual obstruction of the 
proceedings. For here, while petitioner 
was vigorously argumentative and perhaps 
unduly strident in his attempts to 
assert and protect the rights of his 
indigent client, his conduct did not



25

significantly impede the progress of the 
hearings in which he was participating. 
The gist of the contumacious conduct 
here was not profanity, see Eaton v . 
City of Tulsa, 415 U.S. 697 (1974); In 
re Little, 404 U.S. 553 (1972); physi­
cal violence, see Illinois v. Allen, 397 
U.S. 337 (1970); ad hominem abusive 
diatribes, see Mayberry v. Pennsylvania, 
400 U.S. 455 (1971); or the assertion 
that petitioner had a "'"right to ask 
the questions, and [I] propose to do so 
unless some bailiff stops me,"'" In re 
McConnell, 370 U.S. 230, 235 (1962) 
(emphasis deleted). His conduct rather 
consisted of legal arguments and conten­
tions on behalf of his client. While it 
is necessary for a judge to protect his 
courtroom from the obstruction of jus­
tice, "it is also essential to a fair 
administration of justice that lawyers 
be able to make honest good-faith 
efforts to present their clients' 
cases." In re McConnell, supra, 370
U.S. at 236.



26

CONCLUSION
Petitioner respectfully prays 

that his petition for a writ of certi­
orari be granted.

Respectfully submitted,

David E. Kendall 
Counsel of Record

Hill Building 
Washington, D. C. 20006 
(202) 331-5000

Jack Greenberg 
James M. Nabrit, III 
John Charles Boger 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

John R. Myer 
1515 Healey Building 
Atlanta, Georgia 30303

Randall M. Clark 
P. 0. Box 384 
Brunswick, Georgia 31520

Attorneys for Petitioner



APPENDIX



la

Millard C. FARMER, Jr., Petitioner,
v .

Noah J. STRICKLAND, Sheriff of Pierce 
County, Respondent.

No. 79-3908
United States Court of Appeals, 

Fifth Circuit.
Unit B

Aug. 3, 1981.
David E . Kendall, Washington,

D. C. , John Charles Roger, New York
City, John R. Myer, Atlanta, Ga. , Ran-
dall M1. Clark, Brunswick, Ga., for peti-
t ioner.

Dewey Hayes, Dist. Atty., Way- 
cross Judicial Circuit, Douglas, Ga., 
Tony H. Hight, Pros. Atty. Council of 
Ga., Decatur, Ga., for respondent.

Appeal from the United States 
District Court for the Southern District 
of Georgia.

Before MORGAN, ANDERSON, and 
THOMAS A.CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:
The Superior Court of Pierce 

County, Georgia, twice summarily found 
attorney Millard C. Farmer, Jr., in



2a

criminal contempt of court for contuma­
cious conduct during his representation 
of a criminal defendant who was being 
resentenced by the court on a conviction 
for murder and armed robbery. Having 
unsuccessfully sought relief in the 
state courts of Georgia, petitioner 
Farmer filed his 28 IJ.R.C. § 2254 peti­
tion for writ of habeas corpus with the 
United States District Court for the 
Southern District of Georgia. As we 
have concluded that the district court 
was correct in denying the petitioner's 
habeas corpus petition, we affirm.

In September, 1977, Farmer was 
representing convicted murderer George 
Street, whose death sentence had been 
vacated by the United States Supreme 
Court, Street v. Georgia, 429 U.S. 995, 
97 S.Ct. 520, 50 L.Ed.2d 606 (1976), and 
whose case had been remanded for resen­
tencing to the Superior Court of Pierce 
County, Street v. State, 238 Ga. 376, 
233 S.E.2d 344 (1977). The resentencing 
of Street included jury proceedings 
before the Honorable Elie L. Holton, 
Judge of the Pierce County Superior 
Court. Twice during the proceedings



3a

Judge Holton found Farmer in criminal 
contempt of court and sentenced him to 
one and three days respectively in the 
county jail, the sentences to be served 
consecutively.

The two adjudications of con­
tempt were affirmed by the Georgia Court 
of Appeals on May 4, 1978 , Farmer v. 
Holton, 146 Ga. App. 102, 245 S.E.2d 457 
(1978). The Supreme Court of Georgia 
denied certiorari on September 14, 
1978. The United States Supreme Court 
denied Farmer's petition for writ of 
certiorari on March 19, 1979, Farmer v. 
Holton, 440 TJ.S. 9 58 , 99 S.Ct. 1499 , 59 
L.Ed.2d 771 (1979). On March 28, 1979, 
the petitioner filed a petition for writ 
of habeas corpus, along with a motion 
for a stay of his four-day sentence 
pending appeal, with the district 
court. After a hearing on the motion 
for the stay on April 2, 1979, the dis­
trict court denied the motion on April 
5. Farmer was arrested by Pierce County 
authorities on April 7 and served his 
four-day sentence. On August 18, 1979, 
the district court denied Farmer's 
petition for writ of habeas corpus.



4a

Although the petitioner had not 
yet begun to serve his four-day sentence 
at the time he filed his petition for 
writ of habeas corpus with the district 
court, clearly he was free on bond pend­
ing appeal which is to say he was suffi­
ciently "in custody" for the purposes of 
28 U.S.C. § 2254. Hensley v. Municipal 
Court, San Jose Milpitas Judicial Dis­
trict, Santa Clara County, California, 
411 U.S. 345, 93 S.Ct. 157.1, 36 I,.Ed. 2d 
294 (1973); Capler v. City of Green­
ville, Mississippi, 422 F.2d 299 (5 th 
Cir. 1970); Marden v. Purdy, 490 F.2d 
784 (5th Cir. 1969). The district court 
had jurisdiction to consider the peti­
tion. Accordingly, although the peti­
tioner was no longer in custody pursuant 
to the Georgia state court judgment at 
the time of the district court's denial 
on the merits of the habeas corpus peti­
tion, this case is not moot under the 
holding of Carafas v. LaVallee, 391 U.S. 
234, 88 S.Ct. 1556, 20 L.Ed.2d 554 
(1968 ). That case held that once fed­
eral jurisdiction over a § 2254 petition 
has attached in the district court, as 
it did here, the federal court's juris­



5a

diction is not defeated by the peti­
tioner 's release prior to the completion 
of the federal habeas corpus proceed­
ings. Thus, Farmer's claim is not moot, 
and we move on to a recitation of the 
facts and a consideration of the merits 
of his appeal.

At a motions hearing before 
Judge Holton on September 14, 1977, 
before a jury was selected, Farmer 
called his client, defendant Street, to 
the witness stand to testify in support 
of a defense motion to disqualify an 
assistant prosecutor from participation 
in the resentencing proceeding. After 
direct examination, during which Street 
was addressed as "George" by Farmer, 
Assistant District Attorney M. C. Prit­
chard began to cross-examine the defen­
dant, also addressing him as "George." 
The following colloquy ensued:

Q. When did this take place, 
George?

MR. FARMER: Your 
Honor, may I object 
to -- I don't mean to 
harass Mr. Pritchard 
too awful much, but



6a

we will refer to our 
client George Street 
by his first name, 
because that's an 
affectionate way that 
we feel about him. 
And, we've known him 
a period of tine. 
But, we would insist 
that when he is 
referred to by the 
prosecutors that he 
be referred to as Mr. 
MR. PRITCHARD: In
other words, . . .
THE COURT: I will
not direct you to do 
that.

Q. Do you have any objection 
to me calling you 
George?

MR. FARMER: Yes,
sir, Your Honor, I 
object to —  his 
objection is from 
us. It is a demean­
ing thing for you to 
call black people by



7a

the first name and to 
call white people 
Mr. We're not going 
to have a double 
standard. We're not 
going to be a part of 
it. And, we're not 
going to have it.
THE COURT: Objection 
overruled. You may 
ask the question.
MR. FARMER: Your 
Honor, it's a form of 
discrimination.
THE COURT: The ob­
jection is over­
ruled. The objection 
is noted in the re­
cord .

Q. George, when did Mr.
Strickland . . .

MR. FARMER: Your 
Honor, I object again 
to him calling my 
client George. We 
have stated repeat­
edly. [Sic.] He has 
used the term colored



8a

folks and he referred 
to yesterday then. 
[Sic.] He said, "I'll 
call them whatever 
they want to be
called." All of
those things are 
racial slurs. This 
prosecutor is a
racist. And, we've 
got to prevent it 
from coming through 
to the jury. We've 
got to prevent it 
from coming through 
to the Court at every 
stage. We resent the 
fact that he is re­
ferring to the client 
as Mr. We have been 
through this situa­
tion in this State in 
which a trial judge 
allowed and told 
prosecutors and Dis­
trict Attorneys not 
to call black people 
Mr. in his Court.



9a

That’s got to stop in 
this State if black 
people are to have 
equal justice. And, 
it can't stop if 
objection is not made 
to it at a proper 
tine. If he is to 
address this individ­
ual he will address 
him as he addresses 
every other wit­
ness. He is not his 
friend. He is trying 
to have him electro­
cuted. And, he 
should address him as 
Mr. And, I, object 
most strenuously to 
him using this term 
and it's being used 
in a derogatory and a 
discriminatory way, 
just as he was using 
colored and them and 
they and those kind 
of terms. They're



10a

all derogatory, ra­
cial slurs.
THE COURT: Objection
overruled.

0. George, when did . . .
MR. FARMER: Your
Honor, I object to 
him referring to our 
client . . .
MR. PRITCHARD: . . .
MR. FARMER: . . .  by
any name . . .
THE COURT: Don't get
up . . .
MR. FARMER: . . .  at
all.
THE COURT: Have a
seat. Mr. Sheriff? 
SHERIFF: Yes, sir.
THE COURT: Sit this
gentlemen down by the 
name of Mr. Farmer. 
Don't make that ob­
jection again. I
will let you have it 
as a continuing ob­
jection throughout 
the trial.



11a

MR. FARMER: May we
he heard?
THE COURT: No, sir.
MR. FARMER: May we
put up evidence?
THE COURT: No,
sir.
MR. FARMER: Your
Honor, may we argue
this motion?
THE COURT: No,
sir. It's already
been argued all the
Court is going to
hear it.
MR. FARMER: Your
Honor, nay I • • •
THE COURT: No,
sir.
MR. FARMER: May I
have time to prepare
a motion?
THE COURT: No,
sir.
MR FARMER: Your
Honor, may I prepare 
a motion?
THE COURT: No, sir.



12a

MR. FARMER: May I
make an offer of
proof?
THE COURT: No,
sir.
MR. FARMER: May I
confer with my
client?
THE COURT: Not at
this point, no,
sir.
MR. FARMER: May I
advise . . .
THE COURT: Your
client is on the
stand just like • • •
MR. FARMER: . . .  my 
client regarding his 
rights?
THE COURT: . . . 
Don't interrupt the 
Court. Your client 
is on the stand. You 
put him on the stand 
just like any other 
witness. He will be 
treated just like any 
other witness.



13a

MR. FARMER: Your,
Honor, I . . .
THE COURT: No better
or no worse.
MR. FARMER: I didn't
put him on the stand 
to have him discrimi­
nated against.
THE COURT: Over­
ruled. Now, don't 
make that objection 
again. You have a 
continuing objec­
tion. I mean about
calling him by 
name of George.

the

MR. FARMER: Your
Honor, do you object
to me calling you
Elie?
THE COURT: Mr.
Farmer, do not ask
the Court any such
question as that. 
That is a direct
confront [sic] of the
Court of it's [s ic]
authority. If you do



14a

that again I will 
consider it as a 
contempt of this 
Court.
MR. FARMER: What, 
Your Honor, may I ask 
the Court. I want to 
inquire . . .
THE COURT: You are 
to be quiet at this 
point and we're going 
to proceed with the 
cross examination.
MR. FARMER: When may 
I make an objec­
tion?
THE COURT: Are you
going to allow us to 
proceed with the 
cross examination of 
this witness?
MR. FARMER: Your 
Honor, I feel like in 
representing my 
client . . .
THE COURT: Mr. 
Farmer, this Court
finds your continual



15a

interruption of the 
Court, your refusal 
to allow us to con­
tinue with examina­
tion of this witness 
to be in contempt of 
the Court. This 
Court so finds you in 
contempt of Court. 
It is the judgment of 
the Court that you 
are contempt [sic] of 
Court. It's the 
judgment of the Court 
that you be sentenced 
to the common jail of 
this county for a 
period of 24 hours. 
Mr. Sheriff?

The court recessed during which time 
Parmer was led away to be admitted to 
bond pending appeal. He returned to the 
courtroom and resumed his representation 
of Street. Judge Holton entered a writ­
ten order of contempt dated September 14 
which was signed nunc pro tunc on Sep­
tember 20, 1977.



16a

The second summary adjudication 
of contempt occurred in open court on 
September 22, 1977, just prior to a 
sequestered individual voir dire exami­
nation of prospective jurors. In his 
representation of Street during those 
proceedings, Farmer had argued that his 
client was being subjected to racial 
discrimination through the jury selec­
tion process. Although the superior 
court trial judge cited 23 pages of 
transcript in his order adjudging Farmer 
in contempt, we will reproduce here only 
those portions of the transcript which 
seem to be the most relevant exchanges 
between the court and petitioner Farmer.

THE COURT: Mr. 
Farmer, we're not 
going into that in 
this line of argu­
ment. If you want to 
state your point 
state it and I'll 
rule on it. Rut, I'm 
not going into any 
long drawn out argu­
ment .



17a

MR. FARMER: All
right, sir, the point 
I want to make is, 
Your Honor, that I 
feel that you are 
discriminating 
against my client 
because he's black. 
THE COURT: Mr.
Farmer, the argument 
is closed. You have 
used up your argu­
ment. You're over­
ruled. The witness 
is not struck. Have 
a seat, sir.
MR. FARMER: Your
Honor, may I be heard 
on another issue?
THE COURT: No,
sir. We're going to 
proceed with the voir 
dire.
MR. FARMER: Your
Honor, may we have an 
opportunity to deal 
with at some point if 
the court will tell



18a

us when we can deal 
with the racial pre­
judice that is exist­
ing in this courtroom 
and make a record of 
• • •
THE COURT: You're 
not going to -deal 
with it at any 
point.
MR. FARMER: May we 
make a record on it 
and show what's hap­
pening, Your Honor, 
that . . .
THE COURT: There's a 
complete record being 
made of everything
going on in this
courtroom.
MR. FARMER: Your
Honor, the Court has
ruled that we can't
make a showing on
that and the Court
has ruled that ■-- I
understand the
Court's ruling on



19a

that matter. I want 
the Court to under­
stand that our motion 
is to the Court, that 
there is is a pattern 
of discrimination
that is existing and 
that this pattern has 
developed itself as 
we told the Court in 
the pre-trial motions 
that it would develop 
[sic] itself.
THE COURT: I don't
want to hear any more 
of that.
MR. FARMER: And, I .
• •

THE COURT: And, I'm
not going to hear 
it. You're just
making an argument 
and that's all.
MR. FARMER: May we
ask the court . . .  
THE COURT: No,
sir



20a

MR. FARMER: • * •
reporter to reflect
in the record the
race of the jurors as
they cone . . .
THE COURT: Certainly
you may.
MR. FARMER: All
right, sir. Will
that be done?
THE COURT: It will
be done henceforth
from the time you 1ve
requested it.

The court continued its examination of 
prospective jurors.

MR. HAYES [Pierce
County District At­
torney] : Your Honor,
the State at this 
time would challenge 
the juror for cause? 
THE COURT: All
right. Any argument 
on that?
MR. FARMER: Yes,
Your Honor, I think
it's complete [sic]



21a

obvious that the 
juror has said with­
out question that the 
jurors should not, 
that she could be 
fair and she could 
listen to the evi­
dence in here and she 
could decide the 
evidence based on 
what would be pre­
sented in this court­
room. Now, I said to 
the Court previously 
and I want to reiter­
ate that Mr. Hayes is 
asking questions that 
are confusing to the 
jurors. He is intim­
idating to the jurors 
and particularly to .

MR. HAYES: Your 
Honor, the State 
objects to him' argu­
ing that I intimi­
dated a juror, be­
cause it's absolutely



22a

false. It's been in 
the presence of the 
Court. He's just 
making a statement 
wanting to falsely 
accuse me and I ob­
ject to it.
THE COURT: Go 
ahead.
MR. FARMER: Yes, 
sir. Your Honor, 
that he does ask —  
he does have a manner 
that does intimidate 
black jurors by the 
way that he proceeds 
and . . .
MR. HAYES: Your 
Honor, once again I 
object to him making 
a flat, false state­
ment. It's mali­
cious, it's false . . 
•
THE COURT: Now, you 
understand, Mr. 
Hayes, this is an 
argument and that is



23a

the conclusions [sic] 
that he said he draws 
from the questions 
you ask. That
doesn't mean that it 
is true or not true. 
MR. HAYES: I object
to it further as not 
being a conclusion, 
being a personal 
remark and insulting 
to me and I object to 
it.
THE COURT: All
right , I don''t think
it's ■-- well, I'm not

it may not be
insulting, but I'm
going to let h im go
ahead with that.
MR. FARMER: And,
Your Honor, I think
it's completely ob-
vious that these
questions are ' asked 
in a way that are 
[sic] confusing to 
persons who have not



24a

served on the jury
before and who have
not been allowed
entry into our sys-
terns purely because
of the fact of: the
color of their
skin. They have been
• • •

MR. !HAYES: Your
Honor, the State
objects to him going
into a racial mat-
ter. The Court has 
already instructed 
him not to do that 
and he's right hack 
in on it again.
THE COURT: He can
leave race out
now, if you go
ahead with the argu-
ment. Go ahead.
MR. FARMER: Just as
these questions were
used in the voter
registration days to
keep people from



25a

being able to regis­
ter to vote. It 
can't be used in the 
sane way to keep 
people from serving 
on the jury. The 
juror answered as 
fairly, as quickly 
and promptly as any­
body could answer on 
all the relevant 
question [sic] when 
they were asked by 
the Court and when 
they were asked by ne 
and they weren't 
asked in the intimi­
dating way. The 
question were not 
understandable [sic] 
in the way that Mr. 
Hayes was leading and 
asking. them in a 
leading way purely 
for the disqualifica­
tion because of race. 
THE COURT: All 
right. Strike the



26a

juror for cause.
MR. FARMER: Your 
Honor, may we heard 
[sic] on the contin­
ual discrimination on 
the part of this 
Court in the way 
you're striking these 
jurors?
THE COURT: No, sir, 
you may have a 
seat. And you will 
not make any further 
remarks like that.

After the proceedings recessed for lunch 
the court permitted Farmer, on behalf of 
his client, to present testimony con­
cerning alleged intimidation of people 
who were attending the court sessions. 
Following testimony given on that sub­
ject, the colloquy between the peti­
tioner and the court continued as fol­
lows:

MR. FARMER: Your 
Honor, the reason 
that we wanted to 
deal with it at this 
time is to point out



27a

to the Court, is that 
here are things that 
we are being able to 
show you and show the 
Court that's happen­
ing. We are not able 
to find out about 
everything that hap­
pens. We are only 
able to, I'n sure, to 
know a very, very 
small part of what is 
happening. And, the 
Court has got to take 
corrective action and 
the Court has got to 
deal with this in a 
way that we1ve pre­
viously suggested in 
order that it will 
not happen. And, the 
Court has got to 
allow us to inquire 
into what the Court 
before lunch and 
previously wants to 
cover up. And, that 
is the racism that



28a

exists that's effect­
ing [sic] these 
jurors and effecting 
[sic] Your Honor . .

MR. HAYES: Your 
Honor, the State 
objects to the impro­
per malicious argu­
ment he's making on 
the Court.
THE COURT: All 
right, Mr. Farmer, 
the statement that 
the Court wants to 
cover it up is a 
direct contempt of 
the Court, knowingly 
made by you. I have 
repeatedly warned you 
about this. Again 
you have sought to 
make that state­
ment. The Court 
finds you in contempt 
of Court, sir, 
again. The Court 
sentences you to 3



29a

days in the county
jail, ser . . .
MR. FARMER: Your
Honor, nay I he , • •

THE COURT: • •

service to begin at
the termination of
this case. That's
all.
MR. FARMER: Your
Honor, nay I be heard
on this?
THE COURT: Mo, sir.
MR. FARMER: Your
Honor, may I have
counsel to represent
me and present evi-
dence on this issue?
THE COURT: No, sir.
MR. FARMER: Your
Honor, may I for the
purpose of here f or-
ward understand what
can be my role in
representing Mr.
Street as far as
bringing out the
reason that I feel



30a

that he is 
denyed a
trial. I
understand, 
Honor?

being 
fair 

don' t 
Your

THE COURT: You'll
have to exercise your
discretion and your 
knowledge as an at­
torney.
MR. FARMER: Your
Honor, . . .
THE COURT: That's
all.
MR. FARMER: Your
Honor, nay I . . .
THE COURT: No, sir,
we're through with 
that discussion. All 
right, call the next 
juror, Mr. Clerk. 

Farmer was admitted to bond 
pending the appeal of his second con­
tempt conviction. Street's resentencing 
trial proceeded, with Farmer serving as 
Street's attorney. Street ultimately



31a

received a sentence of life imprison­
ment.— /

Farmer raises four issues on 
appeal. First, he contends that the two 
contempt convictions violated his four­
teenth amendment due process rights 
because the Georgia state trial court 
allegedly applied a preponderance of the 
evidence standard, rather than the high­
er evidentiary standard of guilt beyond 
a reasonable doubt. Second, the peti­
tioner argues that his contumacious 
conduct was protected by the sixth and 
fourteenth amendments since he was "vi­
cariously asserting" the constitutional 
right of his client to be free from 
racial discrimination in judicial pro­
ceedings. Third, Farmer contends that 
under the decision in Taylor v ♦ Hayes, 
418 TJ.S. 488 , 94 S.Ct. 2697 , 41 L.Ed.2d 
897 (1974), he was entitled to a hearing 
on the contempt charges before he was 
sentenced. Fourth, Farmer argues that

—/ Since Street received the most fav­
orable sentence possible under the 
circumstances, he did not prosecute 
an appeal.



32a

he was denied his due process rights 
because the state trial judge who sen­
tenced him was the "target" of the alle­
gedly contumacious conduct and another 
judge who was not "personally embroiled" 
with Farmer should have been appointed 
to pronounce sentence.

I.
Farmer argues first that he was 

deprived of his fourteenth amendment due 
process rights because he was adjudi­
cated in criminal contempt of court and 
sentenced to jail on a preponderance of 
the evidence standard of proof rather 
than on the basis of evidence which 
established his guilt beyond a reason­
able doubt. In his formal orders citing 
Farmer for. criminal contempt, Judge 
Holton made no reference to any eviden­
tiary standard. On appeal to the Court 
of Appeals of Georgia, that court held 
that Farmer's two cases "present crimi­
nal contempt clearly and beyond a rea­
sonable doubt." Farmer v. Holton, 146 
Ga. App. 102, 109, 245 S.E. 2d 457, 462 
(078). As the Court of Appeals of 
Georgia acknowledged in Farmer v.
Holton, under Georgia law a defendant



33a

who is tried for criminal contempt may 
be convicted on a preponderance of the 
evidence standard of proof. See Pedigo 
v. Celanese Corp. of America, 205 Ga. 
392, 54 S.E.2d 252 (1949), cert.denied, 
338 TJ.S. 937 , 70 S.Ct. 345, Q4 L.Ed. 578 
( 3.9 50) ; Hill v . Bartlett, 124 Ga.App. 
56, 183 S .E.2d 80 (1971). Farmer con­
tends that a party may not be summarily 
held in criminal contempt for conduct 
committed in the presence of the court 
unless the court as trier of fact estab­
lishes the contemnor's guilt "beyond a 
reasonable doubt." Farmer bases his 
argument that his guilt on summary crim­
inal contempt should be proved beyond a 
reasonable doubt on two Supreme Court 
cases, Jackson v. Virginia,443 U.S. 307, 
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 
and In re Winship, 397 U.S. 3 58, 90 
S.Ct. 1068, 25 L.Ed.2d 368 (1970). 
While this argument is somewhat appeal­
ing, its appeal is only superficial. In 
our view, the concern over the constitu­
tionally acceptable evidentiary standard 
to be applied to cases such as this is 
unfounded. Where the criminal contempt 
is committed totally in the presence of



34a

the judge, the several standards of 
proof have no practical relevance.

In Farmer's case, the facts of 
his courtroom conduct are undisputed. 
The judge personally witnessed all of 
the conduct which was punished as contu­
macious. When the contempt occurs tot­
ally in the presence of the judge, there 
is no necessity for the production of 
evidence. Indeed, there is no burden of 
persuading the trier of fact as there is 
no fact finding process to be con­
ducted. Where the contumacious conduct 
is committed in the presence of the 
court in the immediate view of the 
judge, it is unnecessary for the court 
to apply any evidentiary standard of 
proof in order to summarily hold the 
contemnor in contempt of court. In such 
cases, it is a question of law for the 
court to decide whether the courtroom 
conduct which is factually undisputed 
amounts to criminal contempt of court. 
Therefore, Farmer's first argument is 
without merit.



35a

II.
Next, relying primarily on 

Hamilton v . Alabama, 376 U.S. 650, 84
S.Ct. 982, 11 L.Ed.2d 979 (1964), rev'g, 
ex parte Hamilton, 275 Ala. 574, 156
So.2d 926 (1963), and Johnson v.
Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 
L .Ed. 2d 195 (1963), Farmer contends that 
at least his first contempt conviction 
was unconstitutional because his argu­
ment to the judge was protected since he 
was vicariously asserting the right of 
George Street not to be addressed as 
"George" by the prosecutor. Although 
Judge Holton ruled that Street was en­
titled to a "continuing objection," 
Farmer argues that his refusal to cease 
his argument once the trial judge had 
ruled should not be penalized as con­
tempt since it was "[t]he only way to 
vindicate effectively and fairly 
Street's right to be free of racial 
discrimination in the court room 
[sic]." Appellant's brief at 35. This 
contention is vacuous.

The decisions in both Hamilton 
and Johnson reversed contempt convic­



36a

tions which had been imposed because the 
contemnors had refused to comply with 
radically discriminatory orders given to 
them in open court by state court trial 
judges. In Johnson, the Supreme Court 
reversed the contempt conviction of a 
black man who had refused to obey a 
Virginia state court trial judge's order 
to move to the "colored" section of the 
courtroom. The Court held that "[s]uch 
a conviction cannot stand, for it is no 
longer open to question that a State may 
not constitutionally require segregation 
of public facilities." 373 U.S. at 62, 
83 S.Ct. at 1054. In Hamilton, a wit­
ness in an Alabama court proceeding 
refused to ansv/er questions propounded 
to her by an attorney who addressed the 
witness by her first name only. She was 
found in contempt of court upon her 
refusal to answer the questions until 
she was addressed correctly. The Su­
preme Court reversed her conviction 
based on Johnson. The Georgia trial 
judge's ruling that Farmer's client 
could be addressed by his first name, 
even though clearly racially discrimina­
tory to the client under the holding in



37a

Johnson, certainly cannot be said to 
have infringed on any rights of Farmer 
to be free from racial animus. In both 
Hamilton and Johnson the accused contem- 
nors had been the victims or targets of 
racially discriminatory orders issued 
from the bench. Those circumstances 
simply are not present in this case. 
Once an objection has been made by an 
attorney and the court has made its 
considered ruling, subsequent contuma­
cious conduct will not be excused merely 
for the fact that it was committed by an 
officer of the court during court pro­
ceedings in an attempt to protect the 
rights of the attorney's client.

While we certainly appreciate a 
lawyer's professional duty to safeguard 
the constitutional rights of his client, 
we think that Farmer exceeded the bounds 
of "fearless, vigorous and effective" 
advocacy here in persisting in his ob­
jections and argument once the trial 
judge had ruled on the matter and had 
instructed Farmer not to "make that 
objection again." The following state­
ment from the Supreme Court's opinion in 
Sacher v. United States, 343 U.S. 1, "7 2



38a

S.Ct. 451 , 96 L.Ed. 717 (1952), is
particularly appropriate:

Of course, it is the 
right of counsel for ever}/ 
litigant to press his claim, 
even if it appears farfetched 
and untenable, to obtain the 
court's considered ruling. 
Full enjoyment of that right, 
with due allowance for the heat 
of controversy, will be pro­
tected by appellate courts when 
infringed by trial courts. But 
if the ruling is adverse, it is 
not counsel's right to resist 
it or to insult the judge —  
his right is only respectfully 
to preserve his point for ap­
peal. During a trial, lawyers 
must speak, each in his own 
time and within his allowed 
time, and with relevance and 
moderation. These are such 
obvious matters that we should 
not remind the bar of them were 
it not for the misconceptions 
manifest in this case.

Id. at 9, 72 S.Ct. at 455



39a

Here, Farmer, in both in­
stances, did more than simply vicarious­
ly assert his client's right to be tried 
in an atmosphere free from perceived 
racial discrimination. The appellant, a 
practicing attorney with significant 
courtroom experience, intentionally 
ignored the trial judge's instruction to 
desist from pursuing his argument fur­
ther and also disregarded the judge's 
warning that continued argument on the 
matter would risk a contempt citation. 
Furthermore, Farmer's retort to the 
judge that, "do you object to me calling 
you Elie?' is the type of disrespectful,

i the part of of-
that will not be

irt of law. We do
: with courage or
lence." Sacher V .
S. at 14, 72 S.c t .

at 457 2/

See also In re McLarty, 150 Ga.App. 
395, 258 S.E.2d 10 (1979).

2/



40a

III.
Farmer next challenges his 

contempt convictions on the ground that 
he was not afforded a hearing at which 
he could have presented evidence in 
mitigation and argue that his conduct 
was not contemptuous. In arguing that 
the decision in Taylor v. Hayes, 41R
U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 
(1974), is controlling, Farmer contends 
that under the circumstances of this 
case the trial judge should not have 
summarily convicted him for contempt 
without conducting a hearing on the 
matter. Although Taylor did signifi­
cantly limit a trial judge's authority 
to punish contemptuous conduct summarily 
when the final adjudication of contempt 
and sentencing are postponed until after 
trial, it is clear that the use of sum­
mary contempt procedures is appropriate 
in certain circumstances. United States 
v. Wilson, 421 U.S. 309, 95 S. Ct. 1802, 
44 L . Ed. 2d 186 (197 5).-!/ We conclude

See generally, Kuhns, The Summary 
Contempt Power: A Critique and a

(Continued)



41a

that the state trial court’s use of 
summary contempt proceedings here was 
not only appropriate but was necessary 
to maintain the orderly administration 
of judicial proceedings.

The general powers of Georgia 
state courts are set forth in Ga.Code 
Ann. § 24-104 Ga.Code Ann.5 24-lOsI/

New Perspective, 88 Yale L.J. 39 
(1978) .
Ga.Code Ann. § 24-104 provides in
pertinent part: Every court has
power

(1) To preserve and enforce 
order in its immediate pre­
sence, and as near thereto as 
is necessary to prevent inter­
ruption, disturbance, or hin­
drance to its proceedings.

* * * * *

— / Ga.Code Ann. § 24-105 provides in 
pertinent part: The powers of the
several courts to issue attachments 
and inflict summary punishment for 
contempt of court shall extend only 
to cases of misbehavior of any per­
son or persons in the presence of 
said courts or so near thereto as to 
obstruct the administration of jus­
tice, the misbehavior of any of the 
officers of said courts in their 
official transactions, and the dis- 

(Continued)



42a

specifically authorizes state courts to 
"inflict summary contempt of court" only 
when the contumacious conduct serves to 
"obstruct the administration of 
justice." Rule 23 of the Georgia 
Superior Courts states: "No attorney 
shall ever attempt to argue or explain a 
case, after having been fully heard, and 
the opinion of the court has been 
pronounced, on pain of being considered 
in contempt." Ga.Code Ann. § 24-3323.

In Taylor v. Hayes an attorney 
who had been found in contempt of court 
nine times during a controversial turbu­
lent trial appealed his convictions 
contending, inter alia, that he was 
entitled to notice and a hearing before 
the court finally convicted him and 
pronounced sentence. After each con­
temptuous episode during the trial of 
his client, the attorney had been in­
formed by the trial judge that he "con-

obedience or resistance by any of­
ficer of said court, party, juror, 
witness, or other person or persons 
to any lawful writ, process, order, 
rule, decree, or command of the said 
courts:



43a

sidered" the attorney to be in con­
tempt. However, the judge did not pro­
nounce any of the sentences until after 
the client's trial had finished, and 
apparently the attorney was not finally 
adjudicated in contempt until the con­
clusion of the trial.

Taylor v. Hayes is particularly 
helpful in delineating when a hearing is 
necessary in summary contempt proceed­
ings. The Court noted that it was not 
concerned "with the trial judge's power, 
for the purpose of maintaining order in 
the courtroom, to punish summarily and 
without notice or hearing contemptuous 
conduct committed in his presence and 
observed by him." 413 U.S. at 497, 94 
S.Ct. at 2702-03. However, the Court 
added that "[t]he usual justification of 
necessity . . .  is not nearly so cogent 
when final adjudication and sentence are 
postponed until after trial." Id. , 94 
S.Ct. at 2703 (citation and footnote 
omitted). Therefore, relying on Groppi 
v. Leslie, 404 U.S. 496, 92 S.Ct. 582,
30 L . Ed. 2d 632 (1972), the Court held
that:



44a

[B]efore an attorney is finally 
adjudicated in contempt and 
sentenced after trial for con­
duct during trial, he should 
have reasonable notice of the 
specific charges and opportun­
ity to be heard in his own be­
half. This is not to say, 
however, that a full-scale 
trial is appropriate. Usually, 
the events have occurred before 
the judge's own eyes, and a 
reporter's transcript is avail­
able. But the contemnor might 
at least urge, for example, 
that the behavior at issue was 
not contempt but the acceptable 
conduct of an attorney repre­
senting his client; or, he 
might present matters in miti­
gation or otherwise attempt to 
make amends with the court. 

Taylor v. Hayes, 418 U.S. at 498-99, 94 
S.Ct. at 2793 (emphasis supplied).

Unlike Taylor,' however, here 
Farmer was "finally adjudicated in con­
tempt and sentenced" during trial for
conduct which certainly threatened the



45a

orderly administration of judicial pro­
ceedings. The petitioner acknowledges 
the significant distinction between 
Taylor and the facts presented here but 
contends that the distinction is not 
fatal to his argument that a hearing was 
required because the State of Georgia 
had no compelling state interest in 
denying the contemnor an opportunity to 
be heard on the matter. Specifically, 
Farmer submits that Judge Holton had not 
finally adjudicated him in contempt 
during the trial since the court's 
formal written contempt orders were 
entered nunc pro tunc approximately one 
week after each episode occurred. We 
are not persuaded.

While we recognize that "[s]um- 
mary punishment always, and rightly, is 
regarded with disfavor," Sacher v. 
United States, 343 U.S. at 8, 72 S.Ct. 
at 454, there is no doubt that the sum­
mary contempt power is still available 
to courts, under the appropriate circum­
stances, to control judicial proceed- 
ings. United States v. Wilson, supra. 
As the Supreme Court noted in reviewing 
a case of contempt committed in a state



46a

court proceeding, " [i]nstant action may 
be necessary where the misbehavior is in 
the presence of the judge and is known 
to him, and where immediate corrective 
steps are needed to restore order and 
maintain the dignity and authority of 
the court." Johnson v. Mississippi, 403 
U.S. 212, 214, 91 S.Ct. 1778, 1779 , 29
L. Ed .2d 423 (1971) .

Furthermore, in a federal court 
case involving a lawyer's contempt cita­
tion for arguing his client's case, the 
Supreme Court wrote: "[t]he arguments
of a lawyer in presenting his client's 
case strenuously and persistently cannot 
amount to a contempt of court so long as 
the lawyer does not in some way create 
an obstruction which blocks the judge in 
the performance of his judicial duty." 
In re McConnell, 370 U.S. 230 , 236 , 82 
S.Ct. 1288, 1292, 8 L.Ed.2d 434
(1962). As the Court of Appeals for the 
Seventh Circuit explained in the well 
known contempt case of United States v. 
Seale, 461 F.2d 345 (7th Cir. 1972):

The unmistakable implication of
In re McConnell, . . ., is that
defiance of the court's order



47a

to cease questioning would have 
actually obstructed the pro­
ceedings. As governor of the 
trial, the trial judge must 
have the authority necessary to 
ensure the orderly and expedi­
tious progress of the proceed­
ings. His directives in exer­
cise of this authority must be 
obeyed; otherwise the clear 
result would be courtroom 
chaos. Wholly arbitrary limits 
on argument will, if prejudi­
cial, merit reversal of the 
substantive case, but that 
hardly can excuse open defiance 
of the court's commands.

A certain amount of leeway must 
be allowed. But where the 
directive is clear, the judge's 
insistence on obedience is not 
undercut by his further re­
joinder, and the party directed 
understands what is being asked 
of him, he must obey.

Id. at 371 (citations and footnote omit­
ted). We emphasize that "[i]t is essen­



48a

tial to the proper administration of 
criminal justice that dignity, order, 
and decorum be the hallmarks of all 
court proceedings in our country." 
Illinois v. Allen, 397 U.S. 337, 343, 90 
S.Ct. 1057, 1061, 25 L.Ed.2d 353 
( 1970) .

IV.
Farmer's final argument is that 

he was denied due process of law because 
the judge who summarily held the appel­
lant in criminal contempt of court also 
pronounced sentence. The petitioner 
contends that he and the Georgia state 
trial judge were "personally embroiled" 
in the sense that the judge was the 
"target" of the contumacious conduct. 
Therefore, relying on the Supreme 
Court's decision in Mayberry v. Pennsyl­
vania, 400 U.S. 455, 91 S.Ct. 499, 27 
L.Ed.2d 532 (1971), Farmer submits that 
he "was entitled to be sentenced by a 
neutral and detached jurist."

In Mayberry v.' Pennsylvania a 
state court defendant, representing 
himself at trial, engaged in conduct at 
trial that Justice Douglas described as



49a

"a shock to those raised in the Western 
tradition that considers a courtroom a 
hallowed place of quiet dignity as far 
removed as possible from the emotions of 
the street." 400 U.S. at 456, 91 S.Ct. 
at 500. Throughout the trial in May­
berry , the defendant had verbally at­
tacked the trial judge, accusing him of 
running a Spanish Inquisition and rou­
tinely denouncing the judge in vulgar 
language. Concluding that throughout 
the state court trial the trial judge 
had been the "target" of the contemnor's 
contemptuous conduct, the Supreme Court 
recognized that such "a judge, vilified 
as was this Pennsylvania judge, neces­
sarily becomes embroiled in a running, 
bitter controversy." 400 U.S. at 465, 
91 S.Ct. at 505. As a result, "[n]o one 
so cruelly slandered is likely to main­
tain that calm detachment necessary for 
fair adjudication." Id.

In holding that a defendant in 
a criminal contempt proceeding is en­
titled to a trial before a judge other 
than the one who was the target of the 
allegedly slanderous personal attacks,



50a

the Court provided the following general 
guidelines:

Generalizations are diffi­
cult. Instant treatment of 
contempt where lav/yers are 
involved may greatly prejudice 
their clients but it may be the 
only wise course where others 
are involved. Moreover, we do 
not say that the more vicious 
the attack on the judge the 
less qualified he is to act. A 
judge cannot be driven out of a 
case. Where, however, he does 
not act the instant contempt is 
committed, but waits until the 
end of the trial, on balance, 
it is generally wise where the 
marks of the unseemly conduct 
have left personal stings to 
ask a fellow judge to take his 
place.

Whether the trial be fed­
eral or state, the concern of 
due process is with the fair 
administration of justice. At 
times a judge has not been the



51a

image of "the impersonal au­
thority of law" (Offutt v. 
United States, 348 U.S. 11, 17, 
75 S.Ct. 11, 15, 99 L.Ed. 11) 
but has become so "personally 
embroiled" with a lawyer in the 
trial as to make the judge 
unfit to sit in judgment on the 
contempt charge.
Mayberry v. Pennsylvania, 400 

U.S. at 463-65, 91 S.Ct. at 504-05 (em­
phasis supplied). It should be empha­
sized at this point that since Farmer's 
two summary contempt citations were for 
conduct that took place in open court 
before the jury had been empaneled, we 
do not think that the use of the summary 
contempt power here in any way preju­
diced the rights of Farmer's client, 
George Street.

Furthermore, the Supreme Court 
also noted in Mayberry that,

It is, of course, not 
every attack on a judge that 
disqualifies him from sit­
ting. In Ungar v. Sarafite,
376 U.S. 575, 84 S.Ct. 841, 11 
L.Ed.2d 921, we ruled that a



52a

lawyer's challenge, though 
"disruptive, recalcitrant and 
disagreeable commentary," was 
still not "an insulting attack 
upon the integrity of the judge 
carrying such potential for
bias as to require disqualifi­
cation." Id. , at 584 , 84 S.Ct. 
at 847.

Mayberry v. Pennsylvania, 400 U.S. at
455-66, 91 S.Ct. at 505.

That part of the state trial 
court record which is before us on ap­
peal does not support the petitioner's 
claim that the Georgia trial judge be­
came "personally embroiled" with the
contemnor so that the judge should have
requested that another judge sit in 
judgment on the contempt charges. In
our view, the judge did not demonstrate 
any bias toward the petitioner's con­
duct. In fact, the judge exhibited 
remarkable patience and restraint con­
sidering the defiant, disruptive course 
of conduct followed by the attorney in 
this case. In both the contempt epi­
sodes, the judge repeatedly warned the 
petitioner that if he persisted in his



53a

argument that he would risk being held 
in contempt of court. Yet the peti­
tioner knowingly persisted and engaged 
in sarcastic, disrespectful challenges 
to the court's rulings and authority. 
Clearly, the state trial judge "used the 
summary contempt power only as a last 
resort." Commonwealth of Pennsylvania v. 
Local Union 542, International Union of 
Operating Engineers, 552 F.2d 498 , 514 
(3d Cir. 1977). The trial judge in this 
case was subjected to disrespectful and 
sarcastic comments made by the attor­
ney. Notably, Farmer's gibe, "do you 
object to me calling you filie?", and his 
argument that the court was attempting 
to "cover up" alleged racism in the 
selection of jurors undoubtedly related 
to Judge Holton's rulings on the attor­
ney's objections. However, as we have 
already indicated that the use of the 
summary contempt power was necessary to 
maintain the orderly administration of 
the court proceedings, we do not agree 
that the petitioner's contumacious con­
duct rose to the level of personal vili­
fication and scurrilous attacks on the 
judge so as to disqualify him from pro­



54a

nouncing sentence on the contemnor. 
Under the circumstances of this case the 
petitioner's fourteenth amendment due 
process rights were not violated by the 
Georgia trial judge's immediate sentenc­
ing of the petitioner for the contempt 
violations.

The order of the district court 
denying the petition for writ of habeas 
corpus is AFFIRMED.



55a

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 79-3908

D. C. DOCKET NO. CV-579-19

MILLARD C. FARMER, JR.,

Pet itioner-Appellant,

versus

NOAH J. STRICKLAND, SHERIFF OF PIERCE 
COUNTY,

Respondent-Appellee.

Appeal from the United States 
District Court for the 

Northern District of Georgia

Before MORGAN, ANDERSON and 
THOMAS A. CLARK, Circuit Judges.



56a

J U D G M E N T

This cause came on to be heard 
on the transcript of the record from the 
United States District Court for the 
Northern District of Georgia, and was 
argued by counsel;

ON CONSIDERATION WHEREOF, it is 
now here ordered and adjudged by this 
Court that the order of the District 
Court appealed from in this cause be and 
the same is hereby affirmed.

August 3, 1981
ISSUED AS MANDATE: September 24, 1981



57a

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA 

WAYCROSS DIVISION

MILLARD C. FARMER, JR. *
Petitioner k

Vs. k CIVIL ACTION
k NO. CV 579-19

NOAH J. STRICKLAND, k

Sheriff of k

Pierce County, Georgia, k

Respondent k

ORDER ON PETITION FOR 
WRIT OF HABEAS CORPUS

Millard C. Farmer, Jr., an 
attorney, has filed this petition for a 
writ of habeas corpus, pursuant to 28 
U.S.C. § 2254, seeking to void two 
state sentences, totalling four days in 
jail, for alleged willful contempts 
occurring in the presence of the sen­
tencing state judge. It appears that 
the challenged adjudications were made, 
and the sentences were imposed, immedi­
ately after commission of the alleged 
contumacious conduct by the attorney.



58a

The adjudications of contempt 
were affirmed by the Court of Appeals of 
Georgia, Farmer v. Holton, 146 Ga. 
App. 102, 245 S.E. 2d 45 (1978). 
Farmer's petition for certiorari to the 
Court of Appeals of Georgia was denied 
initially and on motion for reconsid­
eration by the Supreme Court of Georgia 
on October 3, 1978.

On December 15, 1978, Farmer's 
petition for a writ of certiorari to the 
Court of Appeals of Georgia was filed in 
the Supreme Court of the United States 
and, on March 19, 1979, was denied by 
the Supreme Court.

Petitioner's motion for stay of 
execution of the state sentences was 
denied by this Court by Order of April 
5, 1979, after a hearing on April 2, 
1979 at which the parties were given a 
full opportunity to present evidence and 
arguments. Farmer's petition and sup­
plemental memorandum set forth four 
grounds which, he contends, entitle him 
to the relief he seeks. First, peti­
tioner claims that he was deprived of 
due process of law because he was adjud­
icated in criminal contempt and sen­



59a

tenced to jail on a preponderance of the 
evidence rather than on evidence which 
established his guilt beyond a reason­
able doubt. The Court of Appeals of 
Georgia, however, after reviewing the 
record on appeal, decided that:

"The cases here present crimi­
nal contempt clearly and beyond 
_a reasonable doubt. Counsel's 
continuous disregard of the 
court's instructions, his ques­
tion to the Court, 'do you ob­
ject to me calling you Elie?,' 
his verbal assault on the Court 
charging it with malicious and 
arbitrary reasoning on rulings 
made during voir dire, and his 
assertion that the Court would 
not allow him to inquire into 
'what the Court . . . wants to
cover up. And, that is the 
racism that exists that's 
affecting these jurors and 
affecting Your Honor . . . '
were insulting, contemptuous, 
and contumacious. As shown by 
the record, and by virtue of 
the rules of law stated and 
particularly Code Ann. § 24-
3323, we are unable to say that 
the trial judge's adjudications 
of contempt were gross, erro­
neous or flagrant abuses of 
discretion." (Emphasis added)

Farmer v. Holton, 146 Ga. App. 102, 109
(1978). Since the Court of Appeals of
Georgia concluded from its review of the



60a

record that the conduct of the peti­
tioner justified an adjudication of 
contempt clearly and beyond a reasonable 
doubt, the question whether petitioner 
was deprived of due process of law by 
application of preponderance of the evi­
dence standard does not arise on the 
facts of this case. Moreover, the state 
appellate court's characterization of 
the weight of the evidence is substan­
tially supported by the record and 
brooks no "second-guessing" or redeter­
mination by this Court. See 28 U.S.C. § 
2254 (d).

Petitioner asserts, however, 
that the application by the Court of 
Appeals of Georgia of the beyond-a- 
reasonable doubt standard when it re­
viewed petitioner's conviction violated 
the rule set forth in Cole v. Arkansas, 
333 U.S. 196 (1940) and Presnell v.
Georgia, __  U.S. __ , 58 L.Ed.2d 207 , 99
S.Ct. __, (1978). Those cases, however,
deal with deprivations of due. process 
occurring either because the state 
appellate court affirmed a conviction on 
a provision of the substantive criminal 
law other than the one under which de­



61a

fendant was convicted, or because the 
state appellate court affirmed a 
conviction for murder on the basis of 
certain aggravating circumstances not 
found by the jury. Cole v. Arkansas, 
supra, and Presnell v. Georgia, supra, 
do not preclude the affirmance of a 
criminal contempt conviction on the 
basis of an appellate review of the 
evidence under a higher evidentiary 
standard than that applied by the con­
victing Court, even if such occurred, 
here. The record does not, however, 
disclose that the trial judge found 
Farmer guilty merely from a prepon­
derance of the evidence.

Next, Farmer asserts that the 
Sixth and Fourteenth Amendments to the 
Constitution of the United States pro­
hibit his being adjudged in contempt in 
this case because he was asserting the 
rights of his client. This Court recog­
nizes the importance of protecting the 
right of the attorney to assert vigo­
rously the rights of his client. 
However,

"fa] balance must be maintained
. . . between the necessity for
judicial power to curb



62a

obstruction of justice in the 
courtroom and the need for law­
yers to present their clients' 
case fairly, fearlessly, and 
strenuously. In preserving the 
balance, a court must not exer­
cise its summary power of con­
tempt to stifle courageous and 
zealous advocacy, and thereby 
impair the independence of the 
bar. On the other hand, the 
dignity, the independence, and 
the control of the court must 
not be degraded by lawyers who 
'equate contempt with courage 
. . . . [T]he processes of
orderly trial, which [are] the 
supreme object of the lawyer's 
calling,' must be protected. 
Sacher v. United States, 343 
U.S. 1, 14, 72, S.Ct. 451, 457, 
96 L.Ed. 717 (1952)."

Commonwealth of Pennsylvania v . Local 
Union 542, Appeal of Freedman, 552 F. 2d 
498, 503 (3rd Cir. 1977). Here, the
convicting state court afforded peti­
tioner the opportunity fully to assert 
the interests of his client by granting 
a continuing objection to the conduct of 
the prosecutor which was the subject of 
petitioner's contemptuous words and con­
duct. Petitioner's continued objections 
and interruptions of the Court, and his 
direct affronts to the, dignity and in­
tegrity of the Court, clearly could not



63a

be justified under petitioner's duty to 
his client.

Petitioner also contends that 
his s ultima ry conviction for contempt 
violated his rights under the Sixth and 
Fourteenth Amendments to the Constitu­
tion of the United States. Under 
Georgia lav/, every Court has the power 
"to preserve and enforce order in its 
immediate presence . . .  to prevent 
interruption, disturbance, or hindrance 
to its proceedings." Ga. Code Ann.
§ 24-104(1). Further, under Georgia 
law, Courts are empov/ered to inflict 
summary punishment for contempt in cases 
where contemptuous conduct occurs in the 
presence of the Court and obstructs the 
administration of justice as v/ell as in 
cases where an officer of the Court dis­
obeys or resists any lawful order, de­
cree, or command of the Court Ga. Code 
Ann. § 24-105. In addition, attorneys 
are prohibited by Georgia lav/ from "ever 
attempt [ing] to argue or explain a case, 
after having been fully' heard, and the 
opinion of the Court has been pro­
nounced, on pain of being considered in 
contempt." Ga. Code Ann. § 24-3323.



64a

The facts of this case, as they 
appear in the record, amply demonstrate 
that petitioner's conduct in the pres­
ence of the convicting state court 
v/arranted the imposition of summary 
conviction and punishment as authorized 
by Georgia law. Compare United States 
v. Brannon, 546 F.2d 1242 (5th Cir. 
1977). See Fed. R. Grim. P. Rule 42.

State and federal statutes, 
recognizing the inherent power of a 
Court to punish summarily contemptuous 
acts committed in its presence, have 
been upheld as not violative of Federal 
Constitutional safeguards. In re
Oliver, 333 U.S. 257 ( 1948 ); Ex parte
Terry, 128 U.S. 289 (1888). See United 
States v. Abascal, 509 F.2d 752 (9th
Cir. 1975); Moody v . State of Georgia, 
131 Ga. App. 355 (1974); White v.
George, 19 5 Ga. 465 (1943); Garland v.
State of Georgia, 99 Ga. App. 826 
(1959) .

A fair appraisal of the record 
supports the conclusion that summary ad­
judication was the only way the trial 
judge could secure an orderly, seemly, 
decorous trial.



65a

Petitioner contends, finally, 
that he was denied due process of lav/ in 
violation of the Fourteenth Amendment to 
the Constitution of the United States 
when the judge, who was the target of 
the alleged contumacious conduct, sum­
marily determined petitioner to be in 
contempt and pronounced sentence upon 
him. Petitioner relies on cases which 
hold that when a judge has become "per­
sonally embroiled" with the defendant 
such that it is impossible for the judge 
to maintain the calm detachment neces­
sary for fair adjudication, non-sumnary 
disposition is required. See Offutt v. 
United States, 34B U.S. 11 (1954); 
Mayberry v. Pennsylvania, 400 U.S. 455 
(1971). The record in the present case, 
however, does not support the contention 
that the convicting state court became 
personally embroiled with petitioner and 
that the court was, therefore, unable to 
sit objectively and impartially on the 
contempt charges. "The trial judge ex­
hibited patience and restraint, and did 
his utmost to preserve order and dec­
orum; he did not engage in wrangling or 
bickering, and used the summary contempt



66a

power only as a last resort." Common­
wealth of Pennsylvania v. Local Union 
542, Appeal of Freedman, supra, at 
514. See In re William, 500 F.2d 403,
405 (2d Cir. 1974), cert, denied, 419
U.S. 1107 (1975); United States v .
Schiffer , 351 F.2d 91, 95 (6th Cir
1965), cert. denied , 384 U.S. 1003
(1966). This Court concludes that
summary disposition was proper.

Petitioner 1s grounds for
issuance of the writ of habeas corpus 
considered, it is the opinion of this 
Court that the petition for writ of 
habeas corpus should be, and it is 
hereby DENIED.

The Clerk is directed to enter 
a judgment dismissing the petition.

So Ordered, this 18th day of 
August, 1979.

s/_______________________
CHIEF JUDGE, UNITED STATES 
DISTRICT COURT, SOUTHERN 
DISTRICT OF GEORGIA