Farmer v. Holton Petition for Writ of Certiorari to the Court of Appeals of the State of Georgia

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January 1, 1978

Farmer v. Holton Petition for Writ of Certiorari to the Court of Appeals of the State of Georgia preview

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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

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