Farmer v. Holton Petition for Writ of Certiorari to the Court of Appeals of the State of Georgia
Public Court Documents
January 1, 1978
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Brief Collection, LDF Court Filings. Farmer v. Holton Petition for Writ of Certiorari to the Court of Appeals of the State of Georgia, 1978. d0890666-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ff957a45-7120-4b72-a9fd-94104118c1d3/farmer-v-holton-petition-for-writ-of-certiorari-to-the-court-of-appeals-of-the-state-of-georgia. Accessed July 12, 2025.
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IN THE
(Eourt of &tat*s
OCTOBER TERM, 1978
No. 7 8 -
MILLARD C. FARMER, JR.,
Petitioner,
v.
ELIE L. HOLTON, JUDGE,
R esp on d en t.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS
OF THE STATE OF GEORGIA
DAVID E. KENDALL
1000 Hill Building
Washington, D.C. 20006
JACK GREENBERG
JAMES M. NABRIT III
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
JOHN R. MYER
1515 Healey Building
Atlanta, Georgia 30303
A ttorn eys fo r P etition er
DI CESARE - PRINTING :/ Washington, D C. 2 0 0 0 6 / (202) 3 3 1 - 8 1 0 1
TABLE OF CONTENTS
P age
CITATIONS TO OPINIONS B E L O W .......................................... 1
JU R ISD IC TIO N ....................................................................................... 2
QUESTION S PRESEN TED .................................................................2
CONSTITUTIONAL AND STATUTORY
PROVISION S IN V O LV ED ............................................................3
STA TEM EN T............................................................................................4
HOW THE FEDERAL QU ESTIO N S WERE
RAISED AND DECIDED B E L O W ...................... 16
REA SO N S FOR GRANTING THE W R IT .................................17
I. The Court Should G rant Certiorari To Consider
W hether Petitioner, An Attorney Representing An
Indigent B lack Client At A Capital Sentencing
Hearing, W as Deprived Of Due Process Of Law As
G uaranteed By The Fourteenth Am endm ent To
The Constitution Of The United States By Being
Sum m arily Adjudicated In Criminal Contempt Of
Court And Sentenced To Jail O n A Preponderance
Of The Evidence Rather Than O n Evidence W hich
Established His Guilt Beyond A Reasonable
Doubt ...................................................................................... 2 0
II. The Court Should G rant Certiorari To Consider
W hether Petitioner's Convictions And Sentences
For Criminal Contem pt W ere Imposed In Violation
O f The F o u rteen th A m en d m en t To The
Constitution Of The United States, As Construed By
This Court In Decisions Holding That The
Contem pt Power May Not B e Used To Punish
Protests Of Racially Derogatory Forms Of Address
O r The Raising Of Legal A rg u m en ts....................... 26
CONCLUSION............................................................................. 33
APPENDIX A ...................................................................................... A -l
APPENDIX B ....................................................................................A -13
i
TABLE OF AUTHORITIES
A lster v. Allen, 174 Kan. 489, 77 P.2d
96 0 ( 1 9 3 8 ) .................................................................... 24
Bloom v. Illinois, 391 U.S. 194 (1 9 6 8 )....................... 20
Brannon v. Com m onw ealth, 162 Ky. 350, 72
S.W. 703 (1915) ....................................................... 24
Bundy & Farm er v. Rudd, et al, No. TCA 78-0897
(N.D. Fla. Sept. 15, 1978), ail'd No.
78 -3026 (CA5 Oct. 2, 1 9 7 8 ) .................................36
B u rdick v. M arshall, 8 S.D. 308, 66 N.W. 462
(1 8 9 6 )..............................................................................24
Canizio v. N ew York, 327 U.S. 82 (1 9 4 6 )................. 30
City o f Wilmington v. G en era l Team sters L ocal
Union 326, 321 A.2d 123 (Del. 1 9 7 4 ) ............. 23
C ole v. Arkansas, 333 U.S. 196 (1 9 4 8 )....................... 34
C olley v. Tatum, 227 Ga. 294, 180 S.E.2d
346 ( 1 9 7 1 ) .................................................................. 18
Continental In su rance Co. v. B ayless & Roberts,
Inc., 548 P.2d 398, 407 (Alas. 1 9 7 6 )................. 23
C raig v. Harney, 331 U.S. 367 (1947) ...............29, 33
Crary v. Curtis, 199 N.W.2d 319 (Iowa 1972) . . . . 25
Crudup v. State, 218 Ga. 819, 130 S.E.2d 733
(1 9 6 3 )............... 26
Detroit Bd. o f Educ. v. Detroit Fed. o f Teachers,
55 Mich. App. 499, 192 N.W.2d 594 (1974) . 24
D rakeford v. A dam s, 98 Ga. 722, 25 S.E. 833
(1 8 9 6 ).............................................................................. 26
Page
ii
P age
Eaton v. City o f Tulsa, 415 U.S. 697 (1 9 7 4 )............. 32
Edm unds v. Chang, 365 F.Supp. 941 (D. Hawaii
1 9 7 3 ) ............................................................................ 36
Ex parte Cragg, 133 Tex. Crim. Rep 118, 109
S.W.2d 479 (1 9 3 7 ) .................................................... 24
Farm er v. Holton, 146 Ga. App. 101, 245 S.E.2d
457 ( 1 9 7 8 ) ......................................................... passim
F ish ery . United States, 425 U.S. 391 (1976)............ 30
Fraternal O rder o f P olice v. K alam azoo
County, 266 N.W.2d 895, (Mich. App. 1978) . 24
G om pers v. Buck's Stove & R an ge Co., 221 U.S.
4 1 8 ( 1 9 1 1 ) ....................................................... 2 0 ,2 3
G reen v. United States, 356 U.S. 165 ( 1 9 5 8 ) .........23
Hamilton v. A labam a, 376 U.S. 650 (1964). . . passim
Harris v. United States 382 U.S. 162 (1 9 6 5 ) ........... 17
Hawaii Public Em ploym ent Relations Bd. v.
Hawaii State T eachers Assn., 55 Hawaii
386, 520 P.2d 422 ( 1 9 7 4 ) ..................................... 23
Hill v. Bartlett, 124 Ga. App. 56, 183 S.E.2d
80 (1971) ........................................................... 18, 34
Holt v. Virginia, 381 U.S. 131 ( 1 9 6 5 ) ....................... 29
H ow ell v. State, 514 S.W.2d 723 (Ark. 1 9 7 4 ) .........23
Illinois v. Allen, 397 U.S. 337 (1970) .........................32
In re Brown, 454 F.2d 999 (CADC 1 9 7 1 ) ...............23
In re Buehrer, 50 N.J. 501, 236 A.2d 592
(1967)..............................................................................24
In re Colem an, 12 Cal. 3d 568, 116 Cal. Rptr.
381, 526 P.2d 533 ( 1 9 7 4 ) ......................................23
iii
P age
In re Gault, 387 U.S. 1, (1 9 6 7 ) ............................. 20, 21
In re Little, 40 4 U.S. 553 (1 9 7 2 ) .......................... 29, 32
In re M cConnell, 370 U.S. 230 (1962) . . . . 29, 32, 33
In re M cIntosh, 73 F.2d 908 (CA9 1 9 3 4 )................. 23
In re P echn ick, 128 Colo. 177, 261 P.2d
504 ( 1 9 5 3 ) ................................................................... 23
In re Sacher, 343 U.S. 1 ( 1 9 5 2 ) ................................. 31
In re Winship, 397 U.S. 358 (1 9 7 0 )................... 21 22
International M inerals & C h em ica l Corp. v.
L oca l 177, United Stone & A llied Products
Workers, 74 N.M. 195, 392 P.2d 343 (1964) . 24
Jaikins v. Jaikins, 12 Mich. App. 115, 162
N.W.2d 325 (1 9 6 8 ).................................................... 24
John son v. Virginia, 373 U.S. 61 (1 9 6 3 ) ........... 16, 28
K ay v. Kay, 22 111. App.3d 530, 318 N.E.2d
9 (1 9 7 4 )........................................................................ 23
K ellar v. Eighth Ju d icia l District Court,
86 Nev. 445, 470 P.2d 434 ( 1 9 7 0 ) ................... 24
M aness v. Myers, 419 U.S. 449 (1 9 7 5 )..................... 30
M atter o l Carter, 373 A.2d 907 (D.C. 1 9 7 7 ) .............23
M atter o l Johnson, 467 Pa. 552, 359 A.2d 739
(1 9 7 6 ).............................................................................. 24
M ayberry v. Pennsylvania, 400 U.S. 455
(1 9 7 1 ).............................................................................. 32
M ullaney v. Wilbur, 421 U.S. 684 (1975) ................ 22
Norris v. A labam a, 29 4 U.S. 587 (1935) .................. 34
P aasch v. Brown, 199 Neb. 683, 260 N.W.2d
612 ( 1 9 7 7 ) ................................................................... 24
iv
P ag e
P ed igo v. C ela n ese Corp. o f A m erica, 205 Ga.
392, 54 S.E.2d 252 (1 9 4 9 ) ...............17, 18, 19, 34
P resnell v. G eorgia, 47 U.S.L.W. 3314 (U.S. No.
6, 1 9 7 8 ) ........................................................................ 34
Prestw ood v. H am brick, 308 So.2d 82 (Miss.
(1 9 7 5 )............................................................................ 24
R aszler v. Raszler, 80 N.W.2d 535 (N.D. 1957). . . . 25
R en iroe v. State, 104 Ga. App. 362, 121 S.E.2d
811 ( 1 9 6 1 ) ..................................................... 18, 19, 34
S haw v. Com m onw ealth, 354 Mass. 583, 238
N.E.2d 87 6 (1968) ........................................................ 24
Spano v. N ew York, 360 U.S. 315 (1959) .................. 34
S p eiser v. Randall, 357 U.S. 513 (1 9 5 8 )........... 23, 30
State v. Binder, 190 Minn. 305, 251 N.W.
665 ( 1 9 3 3 ) ................................................................... 24
State v. Blaisdell, ____N.H.____ , 381 A.2d
1201 (1 9 7 8 ) ................................................................. 24
State v. Bowers, ____S .C ._____, 241 S.E.2d 409
(1978)............................................................................ 24
State v. Cohen, 15 Ariz. App. 436, 489 P.2d
283 ( 1 9 7 1 ) .................................................................. 23
State v. M eese, 200 Wis. 454, 229 N.W. 31 (1930) 25
State v. Roll, 267 Md. 714, 298 A.2d 867 (1973) . 24
State v. Sherow, 101 Ohio App. 169, 138 N.E.2d
444 ( 1 9 5 6 ) .................................................................. 24
State v. Tittner, 102 W.Va. 677, 136 S.E.
202 ( 1 9 2 6 ) ................................................................... 25
State ex rel. Chrism an v. Small, 49 Or. 595, 90
P. 1110 (1 9 0 7 )........................................................... 25
v
Page
State ex rel. Tague v. District Court, 100 Mont.
383, 47 P.2d 649 (1 9 3 5 ).........................................24
State ex rel. W endt v. Journey, 492 S.W.2d
861 (Mo. App. 1 9 7 3 ) ............................................. 24
State ex rel. Dorrien v. Hazeltine, 82 Wash. 81,
143 P. 4 36 (1 9 1 4 )............................................. 24, 25
State University o f N ew York v. Denton, 35 A.D.2d
176, 316 N.Y.S.2d 297 (1 9 7 0 )..............................24
Stein v. M unicipal Court o f Sioux City, 46
N.W.2d 721 (Iowa 1 9 5 1 ).................................. ... 25
Strauder v. West Virginia, 100 U.S. 303 (1880) . . . 28
Street v. G eorgia, 42 9 U.S. 995 (1 9 7 6 )............... 5
Street v. G eorgia, 237 Ga. 307, 227 S.E.2d
750 ( 1 9 7 6 ) ................................................................ 5
Street v. State, 238 Ga. 376, 233 S.E.2d 344
(1 9 7 7 ).......................................................................... 5
Strunk v. Lew is C oal Co., 547 S.W.2d 252 (Tenn.
Crim. App. 1 9 7 6 ) ................................................... 24
Thom as v. Thomas, ____U tah _____56 9
P.2d 1119 ( 1 9 7 7 ) ................................................... 25
Turner v. State, 283 So.2d 157, (Fla. App. 1 9 7 3 ). 23
United States v. Patterson, 219 F.2d 659
(CA2 1 9 5 5 ).................................................................. 23
United States v. Seale, 461 F.2d 345 (CA7 1 9 7 2 ). 23
United States v. Wilson, 421 U.S. 309 (1 9 7 5 ) ........... 17
W hillock v. W hillock, 550 P.2d 558 (Okla. 1976) . 25
W itherspoon v. Illinois, 391 U.S. 510 (1 9 6 8 )........... 5
vi
P age
Statutes
Georgia Supreme Court Rule 23 (Ga. Code
Ann. §24-3323 (1 9 7 6 ) ) ............................................... 4
Ga. Code Ann. §24-104 ( 1 9 7 1 ) .......................................3
Ga. Code Ann. §24-105 ( 1 9 7 1 ) .......................................3
28 U.S.C. §1257 ( 3 ) .............................................................. 2
O ther auth o rities
Kuhns, The Sum m ary C ontem pt Power:
A Critique an d a N ew Perspective, 8 8 YALE L.J.
39 (1978) .................................................................... 25
ABA CODE OF PROFESSIONAL RESPONSIBILITY
AND CODE OF JUDICIAL CONDUCT (1977) . . . 32
ABA STANDARDS RELATING TO THE
PROSECUTIVE FUNCTION AND THE
DEFENSE FUNCTION (19 7 0 ) ............................. 31, 32
ABA STANDARDS RELATING TO THE FUNCTION
OF THE TRIAL JUDGE ( 1 9 7 2 ) .................................. 36
E. WARREN, THE MEMOIRS OF CHIEF JUSTICE
EARL WARREN ( 1 9 7 7 ) : ............................................. 28
vii
IN THE
&upr«n* (ta r t nf tly?
OCTOBER TERM, 1978
No. 7 8 —
MILLARD C. FARMER, JR.,
Petitioner,
v.
ELIE L. HOLTON, JUDGE,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS
OF THE STATE OF GEORGIA
Petitioner prays that a writ of certiorari issue to
review the judgment of the Court of Appeals of the State
of Georgia, rendered May 4, 1978.
CITATIONS TO OPINIONS BELOW
The opinion of the Court of Appeals of the State of
Georgia is reported at 146 Ga. App. 101, 245 S.E.2d
457, and is attached as Appendix A. The Supreme
Court of Georgia denied a petition for certiorari, Hall J.
specially concurring, and a motion for reconsideration
in unreported orders which are attached as Appendix
B.
2
JURISDICTION
The judgment of the Court of Appeals of the State of
Georgia was entered on May 4, 1978, rehearing
denied, May 26, 1978. The Supreme Court of Georgia
denied a timely petition for certiorari on September 14,
1978, reconsideration denied, October 3, 1978.
Jurisdiction of this Court is invoked under 28 U.S.C.
§1257(3), petitioner having asserted below and
asserting here deprivation of rights secured by the
Constitution of the United States.
QUESTIONS PRESENTED
(1) Whether petitioner, an attorney representing an
indigent black client at a capital sentencing hearing,
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 and sentenced to jail on a
preponderance of the evidence rather than on
evidence which established his guilt beyond a
reasonable doubt?
(2) Whether petitioner's convictions and sentences
for criminal contempt were imposed in violation of the
Fourteenth Amendment to the Constitution of the
United States, as construed by this Court in decisions
holding that the contempt power may not be used to
punish protests of racially derogatory forms of address
or the raising of legal arguments?
3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. This case involves the Fourteenth Amendment
to the Constitution of the United States.
2. It also involves the following provisions of
Georgia law:
Ga. Code Ann. §24-104 (1971):
"Powers o f courts en u m erated .—Every
court has power— 1. To preserve and enforce
order in its immediate presence, and as near
thereto as is necessary to prevent interruption,
disturbance, or hindrance to its pro
ceedings . . . .
3. To compel obedience to its judgments,
orders, and process, and to the orders of a
judge out of court, in an action or proceeding
therein.
4. To control, in furtherance of justice, the
conduct of its officers and all other persons
connected with a judicial proceeding before it,
in every matter appertaining thereto."
Ga. Code Ann. §24-105 (1971):
" P ow ers o f c o u r t s to p u n is h fo r
con tem pt.— 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 person or
4
persons in the presence of said courts or so
near thereto as to obstruct the administration of
justice, the misbehavior of any of the officers of
said courts in their official transactions, and the
disobedience or resistance by any officer of
said court, party, juror, witness, or other person
or persons to any lawful writ, process, order,
rule, decree, or command of said courts."
Superior Court Rule 23 (Ga. Code Ann. §24-3323
(1976)):
"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."
STATEMENT
Petitioner is a member of the Georgia Bar who was
twice found in contempt of court while defending an
indigent, black client at a hearing to determine whether
this client would be sentenced to life or death for
murder. The contempt citations and consecutive
sentences of one days' and three days' imprisonment
were imposed after petitioner had vigorously protested
what he perceived as invidious racial discrimination
against his client. The Georgia Court of Appeals
affirmed, following settled Georgia precedent, ruling
that contempt of court '"is only quasi-criminal''' and is
properly "'tried under the rules of civil procedure!;]. . .
5
a preponderance of evidence is sufficient to convict the
defendant, as against the requirement of removal of any
reasonable doubt which prevails in criminal cases.'"
The Supreme Court of Georgia denied certiorari.
The two criminal contempts occurred on
September 14 and 22, 1977, in the Pierce County
Superior Court, while petitioner was representing Mr.
George Street, who had previously been convicted of
murder, at a proceeding to determine whether Street
would be sentenced to death by electrocution or life
imprisonment.1 Petitioner was at the time Director-
Counsel for Team Defense, Inc., a not-for profit, publicly
supported organization devoted to the representation of
the indigent in cases involving significant civil rights
and civil liberties issues.
At a motions hearing on September 14, 1978,
before a jury was selected, petitioner called Street to the
stand to testify in support of a motion to disqualify
assistant prosecutor Dean Strickland. While employed
by the local public defender's office, Strickland had
previously represented Street, and had conducted that 1
1Street had previously been convicted of armed robbery and
murder and had received a death sentence for murder. Street v.
State, 237 Ga. 307, 227 S.E. 2d 750 (1976). This Court reversed
Street's death sentence, Street v. Georgia, 429 U.S. 995 (1976),
because of a jury selection procedure which was violative of the
rule of Witherspoon v. Illinois, 391 U.S. 510 (1968). The Georgia
Supreme Court then remanded the case, Street v. State, 238 Ga.
376, 233 S.E.2d 344 (1977), for the resentencing hearing at which
the two criminal contempts occurred. Petitioner had represented
Street on certiorari to this Court and continued to represent him
during the subsequent resentencing proceeding.
office's initial interview with Street. Petitioner
contended that Strickland had learned confidential
information during this interview which would be of
value to the State in the current prosecution. After Street
described his interview by Strickland, Assistant District
Attorney M.C. Pritchard cro ss-e xa m in ed and
repeatedly called Street by his first name. Petitioner
objected to this usage, arguing that it was racially
condescending toward his client and was an
expression of invidious discrimination forbidden by the
Fourteenth Amendment since all other participants in
the trial (who were white) were addressed by the
prosecution and by the court as "Mister.'' The trial
judge, Honorable Elie Holton, refused to prohibit the
use of Street's first name by the prosecution, and
petitioner replied:
"MR. FARMER: Your Honor, I object again to him
calling my client George. We have stated
repeatedly. He has used the term colored folks
and he referred to yesterday them [sic]. . . . 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
referring to the client as . . . [George]. We have
been through this situation in this State in
which a trial judge allowed and told
prosecutors and District Attorneys not to call
black people Mr. in his Court. 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
1
made to it at a proper time. If he is to address
this individual he will address him as he
addresses every other witness. He is not his
friend. He is trying to have him electrocuted.
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
discriminatory way, just as he was using
colored and them and they and those kind of
terms. They're all derogatory, racial slurs.
THE COURT: Objection overruled."
Petitioner rhetorically (and hypothetically) then
asked "Your Honor, do you object to me calling you
Elie?" The Court cautioned petitioner not to use this
form of address upon pain of contempt, and petitioner
obeyed this instruction and respectfully addressed the
Court as "Your Honor" throughout. However, when
petitioner's client was further addressed as "George"
by the prosecution, petitioner objected again that this
reference was racially demeaning, and the first finding
of summary contempt occurred after the following
exchange.
“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 objection?
8
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 interruption of the Court, your
refusal to allow us to continue with
examination of this witness to be in contempt of
Court. This Court so finds you in contempt of
Court. It is the judgment of the Court that you
are in contempt 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."
Petitioner was subseguently admitted to bond pending
appeal before serving his sentence.
The second summary adjudication of contempt
occurred on September 27, 1977, during an individual
voir dire of the jury venire at a time when no jurors had
been selected, and no veniremen were present.
Petitioner had argued that his client was being
subjected to racial discrimination in the courtroom.
"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.
9
THE COURT: Mr. Farmer, the argument is
closed. You have used up your argument.
You're overruled. The witness [venireman] is
not struck [for cause]. 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 us when we can deal with the
racial prejudice that is existing in this
courtroom and make a record o f. . .
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 happening, Your Honor, that. . .
THE COURT: There's a complete record being
made of everything going on in this
courtroom.''
Petitioner contended that a racially differential
standard was being applied when jurors were stricken
for cause, but the trial court refused to hear evidence on
this:
"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
10
Court's ruling on that matter. I want the Court
to understand that our motion is to the Court,
that there 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 develope [sic] itself.
THE COURT: I don't want to hear anymore 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."
The next venireman, a black woman, was then
examined. The following occurred:
"Q. [The District Attorney] Do you have any
fixed opinions about what the verdict ought to
be?
A. [Venireman] About this case?
Q. Yes, about this case?
A. Yes. No, uh, huh.
Q. Let me ask you again, because I want to
make sure you understand. You understand
what I mean by a fixed opinion?
11
A. No, what?
Q. I mean a tixed opinion is where you've
already got it made up in your mind what
you're going to do if you serve on the jury and it
wouldn't make no difference what the
evidence was. That's what you call fixed?
A. Right, right, yes, sir.
Q. You understand it now?
A. That's right.
Q. Do you have a fixed opinion about what the
sentence ought to be?
A. Right.
Q. You understand perhaps that since he's
already been found guilty the sentence could
only be one of two things, it could be a life
sentence or a death sentence?
A. That's right. . .
Q. Did I understand you correctly when you
said that you had a fixed opinion about what
the punishment should be?
A. That's right.
Q. I believe you told me that you understand
that he had been found guilty and now it was
just fixing the punishment at either life or the
death sentence. You understand that?
12
A. Yes, sir.
Q. Do you already have it fixed which that
should be?
A. Right.
Q. What?
THE COURT: Just — I'm not going to let you ask
her what.”
Petitioner was then permitted to question the
venireman:
”Q. [Petitioner] Is there any reason that you
can't listen to the evidence in this case and
decide it fairly between the State and the
defendant — could you be fair in this case?
A. Say what?
Q. Can you be fair in this case and listen to
what takes place in the courtroom here and
make a decision?
A. That's right.
Q. And, any ideas that you might have about
the case can you put them aside and decide it
right on what's heard here in this courtroom
and decide the case fairly?
A. Right.
13
Q. And, can you do that in this case — you can
decide it fairly?
A. Right.
MR. FARMER: Thank you .”
The trial court then granted the District Attorney's
motion to strike the venireman for cause, over
petitioner's objection, and the court recessed for lunch.
After lunch, petitioner reported a "direct incident"
of intimidation of a black citizen (who wished to observe
the trial) by her white employer, who was a venireman
on the present panel. Petitioner was allowed to call this
would-be observer, Ms. Betty Washington; she had
been phoned by her employer (who had apparently
seen her at court) the previous afternoon and asked
"why was I up there, being noisy [sic: nosey?]” and "was
I being paid to come up here.” The District Attorney
then cross-exam ined Ms. Washington as to whether
sh e had contacted any jurors on the telephone. The trial
court then assured Ms. Washington of her right to attend
public sessions of the court and asked her to report any
threats or harassment to him. The court indicated that it
would deal with the possible intimidation of black jurors
as these jurors were individually examined on voir dire.
Petitioner urged that the issue of intimidation should be
explored immediately:
"MR. FARMER: 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
being able to show you and show the Court
14
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 corrective action and the Court has got to
deal with this in a way that we've previously
suggested in order that it will not happen. And,
the Court has got to allow us to inquire into
what the Court before lunch previously wants
to cover up. And, that is the racism that exists
that's effecting [sic] these jurors and effecting
[sic] Your Honor. . .
MR. HAYES: Your Honor, the State objects to the
improper malicious 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 sentences you to 3 days in the
court jail, se r . . .
MR. FARMER: Your Honor, may I b e . . .
THE COURT: ...service to .begin at the
termination of this case. That's all.
MR. FARMER: Your Honor, may I be heard on
this?
15
THE COURT: No, sir.
MR, FARMER: Your Honor, may I have counsel
to represent me and present evidence on this
issue?
THE COURT: No, sir."
Petitioner was admitted to bond pending the
appeal ot his contempt conviction. The Street
resentencing trial proceeded, with petitioner serving as
Street's counsel, and Street ultimately received a
sentence of life imprisonment. Since Street received
the most favorable sentence possible under the
circumstances, he did not appeal.
As previously indicated, petitioner appealed his
contempt citations, and the Georgia Court of Appeals
affirmed, rejecting petitioner's contention that the
evidentiary standard which the trial court should have
used was the criminal "beyond a reasonable doubt"
standard. In a brief opinion denying petitioner's
rehearing motion, the Court reemphasized its "holding
that the standard of proof to be applied in contempt
actions such as this is the civil stndard of a
preponderance of the evidence," 245 S.E.2d at 462 .2
2 After the Supreme Court denied certiorari, the Georgia Court
of Appeals granted on October 31, 1978, petitioner's motion to
hold remittitur pending this Court's reconsideration of this petition
for certiorari. Petitioner has thus not yet served any of his two
sentences of imprisonment.
16
HOW THE FEDERAL QUESTIONS WERE
RAISED AND DECIDED BELOW
Point 2 of petitioner's Enumeration of Errors in the
Georgia Court of Appeals recited that "The judgments
and sentences of criminal contempt in the above
referenced appeals are in error because the Trial Judge
failed to make findings that such criminal contempt had
been proven beyond a reasonable doubt," and
petitioner argued this point as a Fourteenth
Amendment due process guestion in his brief, Brief of
Appellant at 7-8. Point 3 contended that petitioner
could not be held in contempt because of this Court's
decision in Johnson v. Virginia, 373 U.S. 61 (1963) and
Hamilton v. A labam a, 37 6 U.S. 650 (1964), id. at 8-11.
The Georgia Court of Appeals explicitly rejected the
first contention, Farm er v. Holton, supra, 245 S.E.2d at
462, and implicitly rejected the second. In his Motion
for Rehearing (at p. 1) in the Georgia Court of Appeals,
petitioner reiterated that the preponderance of
evidence standard "is contrary to the due process
clause of the Fourteenth Amendment,'" and the Court of
Appeals again explicity rejected this argument in a
brief opinion "On Motion For Rehearing", Farm er v.
Holton, supra, 245 S.E.2d at 462. Petitioner's
Application for Certiorari in the Georgia Supreme
Court (at pp. 8-11) submitted for review as Question 1
the contention that the Fourteenth Amendment's Due
Process Clause reguired application of the beyond-a-
reasonable-doubt standard to an adjudication of
criminal contempt and that petitioner had been held in
contempt for constitutionally protected conduct. The
Georgia Supreme Court denied certiorari. Petitioner
17
moved the Georgia Supreme Court for rehearing of this
denial urging, inter alia, that "Petitioner has a right,
under the . . . Fourteenth Am endm ent!] to the
Constitution of the United States, not to be penalized for
vicariously asserting the right of his indigent criminal
client to be free from racial discrimination," (P. 3) but the
Georgia Supreme Court denied this motion.
REASONS FOR GRANTING THE WRIT
The questions presented by this petition are
whether a finding of guilt beyond a reasonable doubt by
the trial court is a necessary predicate to imprisonment
for criminal contempt and whether petitioner was
punished for conduct which this Court has held
constitutionally protected. This petition does not present
any question concerning a court's inherent power to
punish summarily affronts to its authority commited in
open court in the immediate view of the judge, c/ Harris
v. United States, 382 U.S. 162 (1965); United States v.
Wilson, 421 U.S. 309 (1975). The issue here is rather the
standard by which guilt must be adjudicated.
The court below correctly construed applicable
Georgia precedent and held that a beyond-a-reason-
able-doubt finding was not necessary and that guilt
need only be established in the trial court by a
preponderance of the evidence. P ed igo v. C elan ese
Corp. o f A m erica, 205 Ga. 392, 54 S.E.2d 252 (1949),
relied upon by the court below, is representative. There,
the Georgia Supreme Court rejected the contention
that "it would be necessary to apply the rule as to
18
reasonable doubt" to criminal contempt. 54 S.E.2d at
257. The court recognized that "[m]any courts have
said that the reasonable doubt rule should be applied in
such a case; indeed, the great weight of authority has
apparently taken that view .. . . However that may be, we
think that the question before us is one to be determined
by the internal law of this State." Ibid. It proceeded to
hold:
"Although such a contempt is often referred to
as criminal, we think that it is only quasi
criminal, in that it is a violation of an order of
court as distinguished from a penal statute. The
reasonable doubt rule in this State .. .applies
by its terms only to 'criminal cases .'. .. [W]e
think it clear . .. that it applies only in criminal
cases, that is, where parties are being tried for
the alleged commission of crimes as defined in
[the] Code ...; and we have not been able to
find anything to indicate that the [reasonable
doubt] rule was any part of the common law
relating to criminal contempts as is existed
prior to May 14, 1776."
54 S.E.2d at 257-258. A ccord : C olley v. Tatum, 227 Ga.
294, 180 S.E. 2d 346, (1971); Ftenfroe v. State, 104 Ga.
App. 362, 121 S.E. 2d 811, 814 (1961); Hill v. Bartlett,
124 Ga. App. 56, 183 S.E.2d 80, 81 (1971). A criminal
contempt "is tried under the rules of civil procedure,
rather than under the rules of criminal procedure, and
a preponderance of the evidence is sufficient to convict
the defendant." Hill v. Bartlett, supra, 183 S.E.2d at 81.
19
A direct corollory of this rule is that "if there is any
substantial evidence authorizing a finding that the party
or parties charged were guilty of such [criminal]
contempt, and the trial judge so finds, his judgment
must be affirmed in so far as sufficiency of the evidence
is concerned," P ed igo v. C elan ese Corp. o f Am erica,
supra, 54 S.E.2d at 253. In other words, "the trial court's
adjudication of contempt will not be interfered with
unless there is a gross, enormous, or flagrant abuse of
discretion,' R en froe v. State, supra, 121 S.E.2d at 814.
Applying this standard, the court below gave no weight
to the facts that petitioner's allegedly contumacious
conduct (1) was a relevant and well-founded objection
to racially demeaning treatment of his client, and (2)
was presented in the form of legal argument addressed
to the trial court.3 We respectfully suggest that the
ruling below, applying settled Georgia precedent,
presents significant questions which should be
reviewed by this Court.
3The two incidents of alleged contempt are closely related, for
the first arose out of petitioner's objection to the court's allowing the
prosecutor to address petitioner's client as "George" and the
second was petitioner's reference to "the racism that exists" that
"the Court before lunch and previously wants to cover up." This
latter reference obviously included Judge Holton's earlier ruling
which permitted the prosecutor to address defendant Street by his
first name.
20
I. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER PETITIONER, AN
ATTORNEY REPRESENTING AN INDIGENT
BLACK CLIENT AT A CAPITAL SENTENCING
HEARING, 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 AND
SENTENCED TO JAIL ON A PREPOND
ERANCE OF THE EVIDENCE RATHER THAN
ON EVIDENCE WHICH ESTABLISHED HIS
GUILT BEYOND A REASONABLE DOUBT.
We respectfully submit that the standard by which
the trial judge adjudicated petitioner in criminal
contempt is flatly inconsistent with the requirements of
due process. The rationale that criminal contempt is
only "quasi-criminal" will not withstand scrutiny, since
the result of the proceeding is incarceration, s e e In re
Gault, 387 U.S. 1, 27 (1967). As this Court long ago
recognized, the purpose of "criminal contem pt. . . is
punitive, to vindicate the authority of the court,"
G om pers v. Buck's Stove & R an ge Co., 221 U.S. 418,
441 (1911). "[C]riminal contempt is a crime in every
fundamental respect." Bloom v. Illinois, 391 U.S. 194,
201 (1968).
This Court has held that even in "quasi-criminal"
proceedings, the Fourteenth Amendment's Due
Process Clause requires proof of guilt beyond a
21
reasonable doubt before incarceration may be
imposed:
"The requ irem ent of proof beyond a
reasonable doubt h a s . . . [a] vital role in our
criminal procedure for cogent reasons. The
accused during a criminal prosecution has at
stake interests of immense importance, both
because of the possibility that he may lose his
liberty upon conviction and because of the
certainty that he would be stigmatized by the
conviction . . . .
Moreover, use of the reasonable-doubt
standard is indispensable to command the
respect and confidence of the community in
applications of the criminal law. It is critical
that the moral force of the criminal law not be
diluted by a standard of proof that leaves
people in doubt whether innocent men are
being condemned."
In re Winship, 397 U.S. 358, 363 -3 6 4 (1970). Petitioner
has exactly the same interest as the criminal defendant
or the putative juvenile delinquent, for he may be
"restrained of liberty," In re Gault, supra, 387 U.S. at 27,
as a result of the contempt proceeding. In such a case,
"the reasonable-doubt standard is indispensable, for it
'impresses on the trier of fact the necessity of reaching a
subjective state of certitude of the facts in issue.'" In re
Winship, supra, 397 U.S. at 364.
22
P etitioner's con viction s and se n te n ces of
imprisonment were affirmed by the court below on the
theory that "[i]f there is any substantial evidence
authorizing a finding 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.'' Farm er v.
Holton, supra 245 S.E.2d at 462. We respectfully submit
that this standard of decision and of review does not
comply with the Fourteenth Amendment and that the
Georgia court's reliance on the label "quasi-criminal"
totally ignores the important interest petitioner has in
avoiding the loss of liberty and the obloquy stemming
from an adjudication of criminal contempt. There are no
"quasi-" jails. "Winship is concerned with substance
rather than. . . formalism. The rationale of that case
requires an analysis that looks to the 'operation and
effect of the law as applied and enforced by the State,'"
M ullaney v. Wilbur, 421 U.S. 648, 699 (1975) (footnote
omitted):
"There is always in litigation a margin of error,
representing error in factfinding, which both
parties must take into account. Where one
party has at stake an interest of transcending
value— as a criminal defendant his liberty—
this margin of error is reduced as to him by the
process of placing on the other party the
burden o f .. . persuading the factfinder at the
conclusion of the trial of his guilt beyond a
reasonable doubt. Due process commands
that no man shall lose his liberty unless the
23
G o v er nm ent has b o rn e the bu rd en
o f.. . convincing the factfinder of his guilt."
S p e iser v. Randall, 357 U.S. 513, 525 -526 (1958).
The Georgia rule is unique in this country and
differs significantly from that of all other American
jurisdictions. The federal rule is, of course, well settled:
"it is certain that in a proceeding for criminal contempt
the defendant. . . . must be proved to be guilty beyond a
reasonable doubt." G om pers v. Buck's Stove & R an ge
Co., supra, 221 U.S. at 444 .4 At least thirty-four states
and the District of Columbia have adopted a similar
rule, requiring proof beyond a reasonable doubt in
criminal contempt cases. Continental In su rance Co. v.
B ayless & Roberts, Inc., 548 P.2d 398, 407 (Alas. 1976);
State v. Cohen, 15 Ariz. App. 436, 48 9 P.2d 283, 287
(1971); H ow ell v. State, 514 S.W.2d 723, 724 (Ark.
1974); In re Colem an, 12 Cal. 3d 568, 116 Cal Rptr.
381, 526 P.2d 533, 536 (1974); In re P echn ick, 128
Colo. 177, 261 P.2d 504, 507-508 (1953); City o f
Wilmington v. G en era l Team sters L oca l Union 326,
321 A.2d 123, 126 (Del. 1974); M atter o f Carter, 373
A.2d 907, 909 (D.C. 1977); Turner v. State, 283 So.2d
157, 160 (Fla. App. 1973); Hawaii Public Em ploym ent
Relations Bd. v. Hawaii State T eachers Assn., 55 Hawaii
386, 520 P.2d 422, 426 (1974); K ay v. Kay, 22 111. App.
* S e e also, G reen v. United States, 356 U.S. 165, 184 n.15
(1958); United States v. S eale, 461 F.2d 345, 372 (CA7 1972); In re
Brown, 454 F.2d 999, 1007 (CADC 1971); United States v.
Patterson, 219 F.2d 659, 662 (CA2 1955); In re M cIntosh, 73 F.2d
908, 910 (CA9 1934).
24
3d 530, 318 N.E.2d 9, 10 (1974); Alster v. Allen, 174
Kan. 489, 77 P.2d 960, 96 6 (1938); Brannon v.
C om m onw ealth, 162 Ky. 350, 72 S.W. 703, 706(1915);
State v. Roll, 267 Md. 714, 298 A.2d 867, 8 7 6 (1973);
S haw v. C om m onw ealth, 354 Mass. 583, 238 N.E.2d
876, 87 8 (1968); Fraternal O rder o f P olice v. K alam azoo
County, 266 N.W.2d 895, 807 (Mich. App. 1978);5 State
v. Binder, 190 Minn. 305, 251 N.W. 665, 66 8 (1933);
Prestw ood v. H am brick, 308 So.2d 82, 84 (Miss. 1975);
State ex rel. W endt v. Journey, 492 S.W.2d 861, 864
(Mo. App. 1973); State ex rel. Tague v. District Court,
100 Mont. 383, 47 P.2d 649, 651 (1935); P aasch v.
Brown, 199 Neb. 683, 260 N.W.2d 612, 615 (1977);
K ellarv . Eighth Ju d icia l District Court. 86 Nev. 445, 470
P.2d 434, 436 -4 3 7 (1970); State v. B la isd e ll,____N.H.
____„ 381 A.2d 1201, 1201-1202 (1978); In re Buehrer,
50 N.J. 501, 236 A.2d 592, 60 0 (1967); International
M inerals & C h em ica l Corp. v. L oca l 177, United Stone
& A llied Products Workers, 1A N.M. 195, 392 P.2d 343,
3 4 6 (1964); State University o f N ew York v. Denton, 35
A.D.2d 176, 31 6 N.Y.S.2d 297, 302 (1970); State v.
Sherow , 101 Ohio App. 169, 138 N.E.2d 444, 446
(1956); M atter o f Johnson, 46 7 Pa. 552, 359 A.2d 739,
742 (1976); State v. B o w ers ,____ S .C .------ , 241 S.E.2d
409, 412 (1978); B u rdick v. Marshall, 8 S.D. 308, 66
N.W. 462, 464 (1896); Strunk v. Lew is C oal Co., 547
S.W.2d 252, 253 (Tenn. Crim App. 1976); Ex parte
Cragg, 133 Tex. Crim. Rep. 118, 109 S.W.2d 479, 481
(1937); State ex rel. Dorrien v. Hazeltine, 82 Wash. 81,
5A ccord : Ja ik in s v. Jaikins, 12 Mich. App. 115, 162 N.W.2d
325, 329 (1968). But s e e Detroit Bd. o f Educ. v. Detroit Fed. o f
T eachers, 55 Mich. App. 499, 192 N.W.2d 594, 598 (1974).
25
143 P. 436, 440 (1914); State v. Tittner, 102 W.Va. 677,
136 S.E. 202, 206 (1926); State v. M eese, 200 Wis. 454,
229 N.W. 31 (1930).
Moreover, in the remaining States, the standard is
invariably set higher than Georgia's preponderance
rule, see, e.g., Crary v. Curtis, 199 N.W.2d 319, 322
(Iowa 1972) ("clear, satisfactory and convincing"
evidence); R aszlerv . Raszler, 80 N.W.2d 535, 539 (N.D.
1957) ("clear and satisfactory" evidence); W hillock v.
Whitlock, 550 P.2d 558, 560 (Okla. 1976) ("clear and
convincing" evidence); State ex rel. Chrism an v. Small,
49 Or. 595, 90 P. 1110, 1113 (1907) ("clear and
conclusive" evidence); Thom as v. Thomas, ____Utah
_____ 569 P.2d 1119, 1121 (1977) ("clear and
convincing" evidence). Indeed, the courts of these latter
sta tes freg u en tly em p h asize that a "m ere
preponderance" of the evidence is inadequate to
support a conviction for criminal contempt. See, e.g.,
Stein v. M unicipal Court o f Sioux City, 46 N.W.2d 721,
724 (Iowa 1951): "a mere preponderance of the
evidence in a contempt proceeding is not sufficient, as
[the proof] must be of a clear, convincing and
satisfactory nature." Georgia's rule, applied against
petitioner, is thus completely aberrant.6
6Indeed, a recent commentator stated that "[i]t is well settled
that each element of a criminal contempt, including the requisite
mental state, must be proved beyond a reasonable doubt." Kuhns,
The Summary Contempt Power: A Critique and a N ew Perspective,
88 YALE L.J. 39, 48 (1978) (footnote omitted).
26
II. THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER PETITIONER'S
CONVICTIONS AND SENTENCES FOR
CRIMINAL CONTEMPT WERE IMPOSED IN
VIOLATION OF THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES, AS CONSTRUED BY
THIS COURT IN DECISIONS HOLDING
THAT THE CONTEMPT POWER MAY NOT
BE USED TO PUNISH PROTESTS OF
RACIALLY DEROGATORY FORMS OF
ADDRESS OR THE RAISING OF LEGAL
ARGUMENTS.
The court below assumed that it petitioner said
what the transcript indicated he said, then he was
necessarily guilty of criminal contempt. Its analysis
ignores, however, (in large part because of Georgia's
lax evidentiary standard for the adjudication of
contempt), the important findings of fact which must be
made—but which may not have been properly made
here—before petitioner can be punished for criminal
contempt. First, under the law of Georgia, petitioner
must have committed some act which entailed
"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 have been
accom panied by an intent which contained "an
element of criminality, involving . . . the willful
disobedience of orders or decrees made in the
administration of justice," D rakeford v. A dam s, 98 Ga.
722, 25 S.E. 833 (1896).
27
The federal Constitution imposes other substantive
limits on the power of a State to declare conduct
criminally punishable as contempt. 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 addressed him by his first name. In
Hamilton v. A labam a, the Court summarily reversed a
contempt citation which had been imposed upon a
witness for the following:
'"Q What is your name, please?
'A Miss Mary Hamilton.
Q Mary, I believe—you were arrested—who
were you arrested by?
'A My name is Miss Hamilton. Please address
me correctly.
'Q Who were you arrested by Mary?
'A I will not answer a question—
BY ATTORNEY AMAKER: The witness's name is
Miss Hamilton.
'A ----- your question until I am addressed
correctly.
'THE COURT. Answer the question.
'THE WITNESS: I will not a n sw er th em u n less I
am a d d re sse d co rrec tly .
28
"THE COURT: You are in contempt of court—
'ATTORNEY CONLEY: Your H onor—your
Honor—
CHE COURT: You are in contempt of this court,
and you are sentenced to five days in jail and a
fifty dollar fine."
Hamilton v. A labam a, 376 U.S. 65 0 (1964), rev'g Ex
parte Hamilton, 156 So.2d 92 6 (Ala. 1963).7 Such a
form of address to black defendants is an official
"assertion of their inferiority," Strauder v. West Virginia,
100 U.S. 303, 308 (1880). S ee a lso Johnson v. Virginia,
373 U.S. 61 (1963).8
7 S ee E. WARREN, THE MEMOIRS OF CHIEF JUSTICE EARL
WARREN 2 9 5 (1977):
"There are many other equally demeaning indignities
imposed on blacks, some of which have been attributed
to courts... Not only were they segregated and sworn to
tell the truth as witnesses on different Bibles, but they
were further demeaned by the manner in which they
were addressed by both court and counsel. White
witnesses would, of course, in keeping with good
manners, be addressed as Mr., Mrs., or Miss in the giving
of their testimony, but no black witnesses would be so
addressed. With them, it was always Willie or George or
Smith or even 'boy' with males and Mary or Gertie, etc.,
with females."
8In Johnson v. Virginia, the Court summarily reversed the
contempt citation of a black defendant who had refused to obey the
trial judge's order to move to the "colored" portion of the courtroom
and who remained standing in front of counsel table with his arms
folded, stating that he would not comply with the judge's order.
29
The Court has also held, Holt v. Virginia, 381 U.S.
131 (1965); In re M cConnell, 37 0 U.S. 2 30 (1962), thata
lawyer may not be cited for contempt simply for
presenting legal arguments and contentions. The test
for criminal contempt is not the "vehem ence of the
language," Craig v. Harney, 331 U.S. 367, 37 6 (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 judge in the
performance of his judicial duty."
In re M cConnell, supra, 370 U.S. at 236. For mere
language to be contumacious, 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 hardly self-evident that, under a proper
evidentiary standard, petitioner's conduct constituted
criminal contempt, particularly in a case where the line
which the beyond-a-reasonable-doubt standard
protects and defines is not only the boundary between
guilt and innocence, but also the line between
constitutionally protected and unprotected speech. S ee
30
S p e iser v. Randall, supra, 357 U.S. at 526 .9 It is unclear,
for example, that petitioner possessed the disruptive
intent and "willfulness" demanded by Georgia law. For
under Hamilton v. A labam a, petitioner's client Street
could not have been held in contempt if h e had refused
to answer when the prosecutor called him by his first
name. And petitioner could not have been held in
contempt for advising Street to assert this right. M aness
v. M eyers, 4 1 9 U.S. 44 9 (1975). Under the
circumstances here, when defendant Street's life was
literally in the balance, petitioner was arguably justified
in believing that he should be able to assert vicariously
Street's constitutional right to be free from being
condescendingly addressed by his first name. Cl.
Fisher v. United States, 425 U.S. 391, 402 n.8 (1976).
Such a belief, if held in good faith, would surely
negative criminal intent. Petitioner here made a
judgment that Street should not have had to risk
prejudicing the sentencing proceeding to assert his
Fourteenth Amendment right,10 since petitioner, by
9"The vice of the present procedure is that, where particular
speech falls close to the line separating the lawful and the unlawful,
the possibility of mistaken factfinding—inherent in all litigation—
will create the danger that the legitimate utterance will be
penalized."
10Indeed, for Street, "[tjhere was no choice but Hobson's,"
Canizio v. New York, 327 U.S. 82, 92 (1946) (Rutledge J.
dissenting), as to how to be free of racially derogatory and
demeaning treatment in the courtroom. (1) If he refused to answer
the prosecutor's questions, he risked having all his testimony
stricken and being held in contempt by Judge Holton. While he
31
training and education, as well as his status in the
proceedings, was far better equipped than his client to
protect against racial discrimination.
Moreover, it is not clear, under a proper evidentiary
standard, that petitioner's conduct constituted actual
obstruction. 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 intemperate11 presentation of an
objection to racial discrimination, well founded in the
decisions of this Court and plainly relevant to issues at
the trial, is, at least arguably, not actual obstruction of
the proceedings. For here, while petitioner was
could appeal his contempt sentence (and have it vacated under
Hamilton v. A labam a), that would be cold comfort if he received a
death sentence in the sentencing proceeding. (2) On the other
hand, if he answered the prosecutor's guestions which referred to
him as "George", the fact that '"The objection is noted in the
record ... I will let you have it as a continuing objection throughout
the trial,'" Farm er v. Holton, supra, 245 S.E.2d at 459, was egually
ineffective to vindicate his rights. For if he received a sentence of
life imprisonment (as he did), there would be no appeal at all. If he
received a death sentence, it is not clear that this error would be
sufficient to void the sentencing proceeding. 11
11 But s e e ABA STANDARDS RELATING TO THE PROSECUTIVE
FUNCTION AND THE DEFENSE FUNCTION 1 4 5 - 1 4 6 (1970):
"A lawyer cannot be timorous in his representation.
Courage and zeal in the defense of his client's interest
are qualities without which one cannot fully perform as
an advocate. And, since the accused may well be the
most despised of persons, this burden rests more heavily
upon the defense lawyer."
32
vigorously argum entative and perhaps unduly
strident12 in his attempts to assert and protect the rights
of his indigent client, his conduct did not significantly
impede the progress of the hearings in which he was
participating. The gist of the contumacious conduct
here was not profanity, s e e Eaton v. City o f Tulsa, 415
U.S. 697 (1974); In re Little, 404 U.S. 553 (1972),
physical violence, see Illinois v. Allen, 397 U.S. 337
(1970), a d hom in em abusive diatribes, see M ayberry v.
Pennsylvania, 40 0 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
M cConnell, 370 U.S. 230, 235 (1962) (emphasis
deleted). His conduct rather consisted of legal
arguments and contentions on behalf of his client.
12Canon 7, however, enjoins that "A lawyer should represent a
client zealously within the bounds of the law." (Emphasis added.)
The ABA Commentary to Canon 7 notes that" 'An attorney has the
duty to protect the interests of his client. He has a right to press
legitimate argument and to protest an erroneous ruling.'.. 'There
must be protection .. . [for] the attorney who stands on his rights
and combats the order [of a trial judge] in good faith and without
disrespect believing with good cause that it is void, for it is here that
the independence of the bar becomes valuable.'" ABA CODE OF
PROFESSIONAL RESPONSIBILITY AND CODE OF JUDICIAL
CONDUCT EC 7-22 , p. 3 4 n.38 (1977).
"Against a 'hostile world' the accused, called to the bar
of justice by his government, finds in his counsel a single
voice on which he must be able to rely with con fid en ce
that his interests will be protected to the fullest extent
consistent with the rules of procedure and the standards
of professional conduct."
ABA STANDARDS RELATING TO THE PROSECUTIVE FUNCTION AND
THE DEFENSE FUNCTION 1 4 6 (1 970 ) (emphasis added).
33
While it is necessary for a judge to protect his courtroom
from the obstruction of justice," 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, 37 0 U.S. at 236, Judges are
required to tolerate some abrasiveness in the
presentation of legal argument, for "the law of contempt
is not made for the protection of judges who may be
sensitive to the winds of public opinion. Judges are
supposed to be men of fortitude, able to thrive in a hardy
climate." Craig v. Harney, 331 U.S. 367, 376 (1947).
CONCLUSION
The two questions presented in this petition are
c losely interrelated : it is G eo rg ia 's aberran t
preponderance-of-the-evidence rule13 in criminal ' * 1
13The court below stated at one point in its opinion that "[t]he
cases here present criminal contempt clearly and beyond a
reasonable doubt." Farm er v. Holton, supra, 245 S.E.2d at 462. We
respectfully suggest that this statement is nothing more than a
rhetorical afterthought:
(1) Most important, petitioner has a right to have the
Under o f tact determine his guilt beyond a reasonable
doubt. Here, the trial judge in his two citations made no
reference to an evidentiary standard, but presumably
followed the settled law of Georgia. Even if the appellate
court had applied a beyond-a-reasonable-doubt
standard (which it did not), petitioner's due process
rights would have been violated, since his conviction
would have been affirmed on the basis of a different
34
contempt cases which facilitated petitioner's being
sentenced to jail for constitutionally protected
evidentiary standard than was used in the trial court.
C ole v. Arkansas, 333 U.S. 196 (1948); Presnell v.
Georgia, 47 U.S.L.W. 3314 (U.S., Nov. 6, 1978).
(2) The court explicitly stated, both in its original
opinion ('"a preponderance of evidence is sufficient to
convict the defendant, as against the requirement of
removal of any reasonable doubt which prevails in
criminal cases.'" Id. at 462,) and in its opinion on
rehearing ("We 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", ibid.), that petitioner's
convictions were affirmed on the basis of a
preponderance-of-the-evidence standard.
(3) The other Georgia cases cited by and relied upon by
the court below (Hill v. Bartlett, supra; Renlroe v. State,
supra, P edigo v. C elan ese Corp. o f America, supra)
unequivocally hold that the rule in Georgia is that proof
of criminal contempt need only be by a preponderance
of the evidence.
(4) About three weeks after it used the language quoted
in the first sentence of this footnote, the court below
wrote in its opinion on rehearing "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," 245
S.E.2d at 462.
(5) This is a case in which the Court has "the
responsibility of making [its] own examination of the
record," Spano v. New York, 360 U.S. 315, 316 (1959);
see also Norris v. Alabama, 294 U.S. 587, 589-590
(1935), and the record here, s e e pp. 4-15, supra, simply
will not support a finding beyond a reasonable doubt
that petitioner was guilty of criminal contempt.
35
professional14 conduct on behalf of an indigent, black-'
client. Important questions are presented by the
decision below concerning both the requirements of
the Due Process Clause and the application of previous
decisions of this Court. Petitioner respectfully prays that
his petition for a writ of certiorari be granted.
Respectfully submitted,
David E. Kendall
1 0 0 0 Hill Building
W ashington, D.C. 2 0 0 0 6
lack G reen berg
Jam es M. Nabnt III
John C harles Boger
10 Colum bus C ircle
New York, New York 1 0 0 1 9
John R. M yer
1 5 1 5 Healey Building
Atlanta, G eorgia 3 0 3 0 3
Attorneys for Petitioner
14The impact upon petitioner, an attorney, of these contempt
judgments is much more drastic than simply four days'
imprisonment. He may be subjected to professional obloquy and
denied the right to practice pro h o c vice in other jurisdictions.
Indeed, petitioner has already been denied the right to represent a
client in Florida on the basis of the two contempt judgments here,
36
Bundy & Farm er v . Rudd eta]., No. TCA 78-0897 (N.D. Fla. Sept. 15,
1978), ail'd No. 78-3026 (CA5 Oct. 2 ,1978) (certiorari petition due
to be filed by Dec. 29, 1978), S ee also ABA STANDARDS RELATING
TO THE FUNCTION OF THE TRIAL JUDGE §3.5 (1972) (a trial judge
may deny admission pro h a c vice to an attorney from another
jurisdiction who has been held in contempt.) In Edm unds v. Chang,
365 F. Supp. 94 1 ,9 4 4 (D. Idawaii 1973) (footnote omitted), the court
granted habeas relief to an attorney who had been held in
contempt, remarking:
"[t]he consequences of the pending action could be
grave. An attorney's reputation is his principal
professional asset; the success of his efforts often
depends upon a delicate balance of harmony with the
courts. A judgment of criminal contempt is something
far more than a mere 'moral restraint' to one who
occupies the status of an officer of the court. Moreover...
there is at least the potential for disciplinary action being
taken against an attorney who is found in contempt."
A P P E N D I X A
APPENDIX AA-l
FARM ER
v.
HOLTON (two cases).
C ou rt of A p peals of G eorgia.
A rgued April 5, 1 9 7 8 .
D ecided M ay 4, 1 9 7 8 .
R ehearing Denied M ay 2 6 , 1 9 7 8 ,
1 4 6 Ga. A pp. 1 0 1 , 2 4 5 S .E .2d 4 5 7 .
WEBB, Judge.
During the course of the retrial as to sentence of one
George Street who had been convicted of murder and
armed robbery,1 attorney Millard Farmer, who at the
retrial was counsel for the convicted murderer, was
twice adjudged by the trial judge to be guilty of direct
criminal contempt of the court. On one contempt
charge the sentence was one day in the common jail
and on the other the sentence was three days. We find
no merit in any of the grounds argued in Farmer's two
appeals, and affirm the judgments of conviction.
1Street v. State, 238 Ga. 376, 233 S.E.2d 344 (1977).
A-2
First C ontem pt
The trial court adjudged Farmer in direct criminal
contempt on September 14, 1977, and sentenced him
to confinement for 24 hours in the common jail for
contemptuous conduct occurring on that date. The
court in its order recited that from the very beginning of
the hearings in the sentencing aspect of the Street
murder case, the contemnor had interrupted the court
while the court ruled on objections and motions, had
refused to obey the ruling of the court, had disrupted the
proceedings of the court, had refused to allow the court
to continue in an orderly manner with the business
before it, and had "continually demonstrated, by way of
demeanor and words, his contempt for the orderly
processes of this court." The order guoted as
contemptible conduct by Farmer the following
occurrence during the cross examination of the
convicted felon, George Street, by the assistant district
attorney, M.C. Pritchard: "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
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. 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 demeaning
thing for you to call black people by their first name and
to call white people Mr. We're not going to have a
double standard. We're not going to be 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
objection is overruled. The objection is noted in the
record. Q. George, when did Mr. Strickland . . . Mr.
Farmer: Your Honor, I object again to him calling my
client George. We have stated repeatedly. He has used
the term colored folks and he referred to yesterday
them. 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 state, [sic] We
resent the fact that he is referring to the client as Mr. We
have been through this situation in this State in which a
trial judge allowed and told prosecutors and District
Attorneys not to call black people Mr. in his Court.
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 time. If he is to address this individual he
will address him as he addresses every other witness.
He is not his friend. He is trying to have him
electrocuted. 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 all derogatory, racial slurs.
The Court: Objection overruled. Q. George, when
did . . . Mr. Farmer: Your Honor, I object to him referring
to our clien t. . . Mr. Pritchard: . .. Mr. Farmer: . . . by any
name .. . The Court: Don't get up . . . Mr. Farmer: . . . at
all. The Court: Have a seat. Mr. Sheritf? Sheriff: Yes, sir.
The Court: Sit this gentleman down by the name of Mr.
Farmer. Don't make that objection again. I will let you
have it as a continuing objection throughout the trial.
Mr. Farmer: May we be 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, may 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. 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. 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
discriminated against. The Court: Overruled. Now don't
make that objection again. You have a continuing
objection. I mean about the calling him by the name of
George. 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
of the court of its authority. If you do 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
A-5
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 objection? 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 clien t. . . The Court: Mr.
Farmer, this Court finds your continual interruption of
the Court, your refusal to allow us to continue with
examination of this witness to be in contempt of Court.
This Court so finds you in contempt of Court. It is the
judgment of the Court that you are in contempt 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?"
Secon d C ontem pt
The second judgment for a direct criminal
contempt by Farmer was eight days later, September
22, for his refusal to abide by the rulings of the court by
persisting in a line of questioning which the court had
repeatedly ruled impermissible, and in attributing
improper motives to the court's rulings. Farmer made a
direct verbal assault on the court, according to the
citation for contempt, by charging it with malicious and
arbitrary reasoning in its rulings. Attached as an exhibit
to the court's order was a 23-page transcript, consisting
in the most part of rambling and often obfuscatory
attempts by attorney Farmer to establish that racial
prejudice and discrimination had been exhibited by
the judge and the prosecution during jury selection,
which culminated in the following pertinent exchange:
A-6
"The Court: . .. Now, we'll deal with this juror situation
when they come up. That will go to—probably go to
gualifications of that juror. Mr. Farmer: 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
being 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 corrective action and the Court has got to
deal with this in a way that we've previously suggested
in order that it will not happen. And, the Court has got to
allow us to inguire into what the Court before lunch and
previously wants to cover up. And, that is the racism that
exists that's affecting these jurors and affecting Your
Honor.. . Mr. Hayes: Your Honor, the State objects to the
improper malicious argument 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
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 sentences you to 3 days in the
county jail, s e r . . . Mr. Farmer: Your Honor, may I
be .. . The Court: . . . service to begin at the termination
of this case. That's all. Mr. Farmer: Your Honor, may I be
heard on this? The Court: No, sir. Mr. Farmer: Your
Honor, may I have counsel to represent me and present
evidence on this issue? The Court: No, sir. Mr. Farmer:
Your Honor, may I for the purpose of here forward
understand what can be my role in representing Mr.
Street as far as bringing out the reason that I feel that he
A-7
is being denied a fair trial. I don't understand, Your
Honor? The Court: You'll have to exercise your
discretion and your knowledge as an attorney. Mr.
Farmer: Your Honor, . . . The Court: That's all. Mr.
Farmer: Your Honor, may I . .. The Court: No, sir, we're
through with that discussion. All right, call the next
juror, Mr. Clerk."
1. The power to punish for contempt is inherent in
every court of record, and under Code Ann. §24-104,
every court has power to punish for contempt
committed in its immediate presence. Plunkett v.
Hamilton, 136 Ga. 72(1), 70 S.E. 781 (1911). "We start
with the premise that the right of courts to conduct their
business in an untrammeled way lies at the foundation
of our system of government and that courts necessarily
must possess the means of punishing for contempt
when conduct tends directly to prevent the discharge of
their functions." W ood v. G eorgia, 370 U.S. 375, 383,
82 S.Ct. 1364, 1369, 8 L.Ed. 2d 569, 576 (1962).
" ‘It is fundamental that every court possesses the
inherent power to preserve and enforce order and
compel obedience to its judgments and orders, to
control the conduct of its officers and all other persons
connected with the judicial proceedings before it and to
inflict summary punishment for contempt upon any
person failing and refusing to obey any lawful order of
such court. Code §§24-104, 24-105; B radley v. State,
111 Ga. 168, 170, 36 S.E. 630, 50 L.R.A. 691, 78
Am.St.Rep. 157. This court will not undertake to control
the wide discretion vested in the trial court in the
A-8
exercise of this fundamental power unless it is made to
appear that wrong or oppression has resulted from an
abuse of such discretion reposed in the court. Carr v.
State, 76 Ga. 592, 596; Perrym an v. State, 114 Ga. 545,
546, 40 S.E. 746.' Ja ckson v. State, 225 Ga. 553, 557(4),
170 S.E. 2d 281, 285 (1969) See G arland v. State, 101
Ga. App. 395, 427, 114 S.E.2d 176 (I960).'' Young v.
C ham pion, 142 Ga. App. 687, 691, 23 6 S.E.2d 783,
786 (1977).
2. Criminal contempt is that which involves some
disrespectful or contumacious conduct toward the
court. W elborn v. Mize, 107 Ga. App. 427, 130 S.E. 2d
623 (1963). It involves action by the court to compel
respect thereto, to vindicate its authority, and to enforce
the lawful processes and actions of the court. Hill v.
Bartlett, 124 Ga. App. 56, 183 S.E. 2d 80 (1971). It is
direct and punishable summarily without notice and
opportunity to be heard if committed in the presence of
the court, and is exempt from those due process
requirements. M ooody v. State, 131 Ga. App. 355,
358(2), 359, 206 S.E.2d 79 (1974); In re Fite, 11 Ga.
App. 665(2, 3), 76 S.E. 397 (1912); United States v.
Peterson, 45 6 F.2d 1 1 3 5 , 1 1 3 9 (10th CCA, 1972); Code
Ann. §24-1052
2M ayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499,
504, 27 L.Ed.2d 532 (1971), does not require a hearing before a
separate and independent judge tor due process reasons, as
argued by attorney Farmer. Mayberry states; "A judge cannot be
driven out of a case. Where, however, he does not act the instant the
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."
A-9
'"[T]he right to take such summary action is
inherent in courts for their own preservation, is not
subject to be abridged by legislative action or
otherwise, and . . . for a direct contempt committed in
the face of the court, one that threatens to scandalize or
destroy order in the courtroom the offender 'may be
instantly apprehended and immediately imprisoned,
without trial or issue, and without other proof than [the
judge s] actual knowledge of what occurred; and
according to an unbroken chain of authorities,
reaching back to the earliest times, such power,
although arbitrary in its nature and liable to abuse, is
absolutely essential to the protection of the courts in the
discharge of their functions." M oody v. State, 131 Ga
App. 355, 359, 206 S.E.2d 79, 81 supra; White v.
G eorge, 195 Ga. 465, 469, 24 S.E.2d 797 (1943);
G arland v. State, 99 Ga. app. 826, 831 110S.E .2d 143
(1959). 2
2. "[T]he matter is not, strictly speaking, a
criminal case, but is only guasi-criminal. It is tried under
the rules of civil procedure, rather than under the rules
of criminal procedure, and a preponderance of
evidence is sufficient to convict the defendant, as
against the requirement of removal of any reasonable
doubt which prevails in criminal cases." Hill v. Bartlett,
124 Ga. App. 56, 183 S.E.2d 80, supra; R enfroe v. State,
104 Ga. App. 362, 365, 121 S.E.2d 811 (1961); P ed igo
v. C ela n ese Corp. o f A m erica, 205 Ga. 392, 54 S.E. 2d
252 (1949) cert. den. 338 U.S. 937, 70 S.Ct. 346, 94
L.Ed. 578. If there is any substantial evidence
authorizing a finding that the party so charged was
guilty of contempt, and that is the trial judge's
A-10
conclusion, his judgment must be affirmed insofar as
the sufficiency of the evidence is concerned. Nylen v.
Tidwell, 141 Ga.App. 256, 233 S.E. 2d 245 (1977).
Questions of contempt if committed in the actual
presence of the court are for the court treated with
contempt, and the trial court's adjudication of contempt
will not be interferred with unless there is a flagrant
abuse of discretion. Crudup v. State, 106 Ga.App. 833,
838, 129 S.E. 2d 183 (1962); S.C., 218 Ga. 8 1 9 , 1 3 0 S.E.
2d 733 (1963); cert, den., 375 U.S. 829, 84 S.Ct. 74, 11
L.Ed.2d 61.
4. "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." Rule 23, Rules of the
Superior Court (Code Ann. §24-3323). Here attorney
Farmer, being an officer of the court and fully cognizant
of the foregoing rule, needed no warning to cease
persisting in his arguments in view of the rulings of the
trial court. He needed no further protection, for his client
than an adequate record, which presumably was made.
Even if the trial judge were in error in some of his
rulings, and we do not so hold, it was the duty of counsel
to abide by those rulings; and if any right of his client
was violated, the remedy was by appeal with which
counsel is thoroughly familiar3.
3We would note, however, that apparently, although counsel
appeals from judgments giving him four days in jail, he must not
have considered the trial judge to have made any harmful error in
the retrial, inasmuch as he made no appeal for his client who
received a life sentence, the lesser of two sentences applicable to a
conviction of murder.
A -l l
5. The cases here present criminal contempt
clearly and beyond a reasonable doubt. Counsel's
continuous disregard of the court's instructions, his
question to the court, "do you object 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
a f f e c t i n g t h e s e jur or s and a f f e c t i n g Your
Honor. . were in 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, erroneous or
flagrant abuses of discretion. Having conducted
himself as the record shows, counsel perforce must
abide the consequences.
Ju dgm en ts affirmed.
QUILLIAN, P.J., and McMURRAY, J, concur.
ON MOTION FO R REHEARING
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 C raig v. Harney, 331 U.S. 367, 67 S.Ct. 1249,91 L.Ed.
1546 (1947). That case is not controlling since it turns
A-12
upon First Amendment rights and the freedom of the
press to make public comment on the actions 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.
Motion for reh ear in g den ied .
A P P E N D I X B
A-13
APPEN D IX B
CLERK'S OFFICE, SUPREME COURT OF GEORGIA
Atlanta 9 / 14/ 78
Dear Sir:
C ase No. 3 3 9 2 3 Farm er v. Holton, Judge
The Suprem e Court today denied the writ of certiorari in
this case. All the justices concur. Except Hall,. J,, who concurs
specially
Very truly yours,
MRS. JOLINE B. WILLIAMS,
Clerk
Clerk's Office, Suprem e Court of G eorgia
Atlanta 10/ 3/ 78
DEAR SIR:
THE MOTION FOR RECONSIDERATION was denied today:
C ase No. 3 3 9 2 3 Farm er v. Holton, Judge.
Yours very truly,
MRS. JOLINE B. WILLIAMS,
Clerk