On appeal from the Superior Court of New Jersey, Law Division, Union County.
Michels, O'Brien and Skillman. The opinion of the court was delivered by Michels, P.J.A.D. Skillman, J.A.D., dissenting.
[219 NJSuper Page 554] On March 19, 1986, following a summary hearing, the Honorable Alfred J. Lechner, Jr. found defendant James B. Daniels, an attorney-at-law of the State of New Jersey, guilty of contempt in the presence of the court, sentenced him to two days in
the Union County Jail and fined him $500. Defendant appealed.
The events giving rise to the contempt conviction occurred during defendant's representation of Michael McMahon, whose trial for first degree robbery commenced on March 18, 1986. Defendant was employed by the Union County Region of the Office of the Public Defender and assigned as trial counsel for McMahon. Although defendant was held in contempt on March 19, 1986, the second day of pretrial hearings, a review of the proceedings on both March 18 and 19, 1986 and of certain events leading up to trial is necessary to establish the context in which the allegedly contemptuous behavior occurred.
On January 14, 1986, Investigator John Stanton, an expert polygraphist in the Public Defender's Office, administered a polygraph examination to McMahon. Stanton informed defendant that McMahon passed the test "with flying colors," and, that in the ten years in which he had been involved in polygraph testing, no one who passed so convincingly had ever failed a subsequent examination. Based upon this assessment, defendant contacted the Prosecutor's Office to see if they would be willing to allow McMahon to take their polygraph test on a stipulated basis. Initially, the State was not amenable to this request; however, after persisting for several weeks and filing a formal motion to attempt to compel the State to give a stipulated polygraph, defendant was able to convince the State to allow McMahon to be tested. Thus, knowingly, voluntarily and, at all times represented by counsel, McMahon entered into an agreement with the State which provided, among other things, that: (1) irrespective of the outcome, the results of the polygraph test to be administered by Investigator Peter Brannon, a polygraph expert employed by the State, would be admissible on behalf of either side; (2) the results of any other polygraph examination would not be admissible unless covered by a separate stipulation, and (3) although the opposing party [McMahon] could cross-examine Brannon as to his personal qualifications or the details of the test which he administered,
McMahon could not introduce another polygraphist to refute Brannon's expert testimony.
After conducting an examination, Brannon concluded that McMahon was not telling the truth when he denied his involvement in the robbery with which he was charged. Brannon and Stanton then compared the tests that each had administered to McMahon. Although reaching opposite results concerning McMahon's complicity in the crime, they had used virtually identical equipment and questions, and both tests were conducted properly. Neither polygrapher could explain the divergence in the results.
At the March 18, 1986 hearing, the trial court heard argument on the defense motion to have the State's polygraph evidence excluded or, alternatively, to permit the results of Investigator Stanton's test to be admitted into evidence. Preliminarily, defendant requested a Rule 8 hearing so that the trial court might reconsider the reliability of polygraph results in light of the information which had become available since the Supreme Court's decision in State v. McDavitt, 62 N.J. 36 (1972). Defendant maintained that the plethora of research since McDavitt has established the unreliability of polygraph examinations. In support of his position, defendant presented certain literature and was prepared to offer the testimony of Dr. Leonard Saxe, a Boston University professor who authored a 1983 congressionally commissioned study which concluded that there was no scientific basis for the validity or use of the polygraph test. Nonetheless, the trial court denied the defense request for a Rule 8 hearing. Because McDavitt established that "polygraph results are admissible if they are the subject of a knowing, voluntary, unequivocal and reciprocal stipulation" and in the instant case the parties had such a stipulation, the trial court concluded that a Rule 8 hearing would serve no purpose.
Defendant proceeded to argue that enforcement of certain provisions of the stipulation would be violative of due process,
public policy and principles of fundamental fairness. The thrust of defendant's argument was that precluding the defense from introducing the results of the first polygraph test through its own expert would serve no legitimate purpose and would conceal half the story from the jury. Given the overriding concern with the search for truth, defendant maintained that the trial court should repudiate those provisions of the stipulation which would result in a distortion of the evidence presented to the jury. After allowing a lengthy argument by defendant and the State's response thereto, the trial court explained in detail that the stipulation met the requirements of McDavitt, constituted a knowing and intelligent waiver of McMahon's Sixth Amendment rights to present evidence and expert testimony, and would therefore be enforced in its entirety in the interests of justice.
After the trial court rendered its decision, defendant inquired whether, in cross-examining the State's polygraphist, he would "be permitted to read the stipulation in its entirety, making reference to the fact [that] he [Brannon] was aware that another test had been conducted." The trial court denied defendant's request and specifically ordered him not to refer directly or indirectly to the other polygraph examination. Defendant's attempt to pursue the matter further precipitated the following exchange:
THE COURT: I don't want to hear any further argument on it. I will not permit further argument on it. I gave you your chance earlier. It's over.
MR. DANIELS: I have not been able to argue this point.
THE COURT: I'm sorry. I asked you any other point on the stipulation. You said no. No further argument.
THE COURT: Mr. Daniels, did you hear me?
MR. DANIELS: Yes, sir, I must insist --
THE COURT: You will not get it.
MR. DANIELS: I have not been given an opportunity to argue this.
THE COURT: You will not get this.
MR. DANIELS: I must have misunderstood the Court with reference to --
THE COURT: We've been doing this for two hours. This hearing is over.
Furthermore, the trial court denied defendant's application to stay the proceedings to allow for an interlocutory appeal of the ruling.
Later in the same proceedings, defendant argued that, by its terms, the parties' stipulation would allow him to question the State's polygraphist about the "critics of [the] polygraph and their concerns about [the] unreliability and invalidity of the test in general." To this end, defendant presented to the trial court numerous articles on the polygraph and requested, pursuant to Evid.R. 9(2)(e), that the court take judicial notice of those articles. Due to the controversy surrounding the reliability of the polygraph, the trial court opined that the writings were not the proper subject of judicial notice. However, the trial court agreed with the prosecutor that defendant could use these articles to cross-examine the State's expert if he recognized them as treatises or authorities in the field. Defendant presented additional argument on the matter which the trial court agreed to consider over the lunch recess. However, upon reconvening the hearing, the trial court ruled that it would not take judicial notice of the articles.
Defendant requested to be heard on that ruling, and the trial court afforded him five minutes to present his views. After defendant argued why he believed the articles on the polygraph satisfied the requirements of Evid. R. 9(2)(e), the following colloquy took place:
THE COURT: So what? So what on all of this?
MR. DANIELS: So what, Judge?
THE COURT: That's exactly what I said. So what?
MR. DANIELS: There couldn't be anything more important. I have been denied the opportunity to bring in my experts to talk about this.
THE COURT: No, you haven't been denied. You went into a stipulation agreeing not to do that. You weren't denied anything.
MR. DANIELS: I am denied that. Okay? The Court has ruled. I have said in spite of my stipulation I have asked to do this and the Court refused to allow me to.
THE COURT: The answer is no, unequivocally, unalterably, no. Anything else on this point?
MR. DANIELS: I just want to make sure I understand the Court's ruling.
THE COURT: Oh, stop. Don't posture with me. Anything else on this point?
After the trial court reiterated that it would not take judicial notice of the articles and that defendant could refer to them only if the State's polygrapher recognized them as treatises, the trial court and defendant addressed one another in the following manner:
THE COURT: Mr. Daniels, I frankly don't care about your response but if you continue to do that, sir, I'm going to take appropriate action.
MR. DANIELS: Your Honor, go right ahead, take whatever appropriate action your Honor deems necessary.
THE COURT: For the record, Mr. Daniels, you're sitting there shaking your head, smiling and being disrespectful. I'm telling you right now, you are close to the edge, sir. I frankly do not care what you think about my rulings. Should you manifest it outwardly in this courtroom, I shall hold you in contempt and I shall put you in the County Jail. Thereafter I will adjourn the trial until you come out.
I am giving you fair warning. I will not put up with your antics. I do no want to hear a word from you again. When I say the argument is over you will sit down and be quiet. Do you understand me?
MR. DANIELS: You could not be clearer.
THE COURT: Be guided accordingly.
A recess ensued, after which defendant stated to the trial court:
I would just like to say that although clearly I was disappointed with the Court's ruling, I meant no disrespect to the Court. It was a very human response, I shook my head. I apologize. I meant no disrespect.
The trial court replied that they should "[p]ut it behind [them] and forget about it."
Following a Wade hearing, which was decided against McMahon, a jury was selected on March 19, 1986. After counsel for both sides had stated that the jury was satisfactory, but before the jurors were sworn, defendant moved for a mistrial based on the principles espoused in State v. Gilmore, 199 N.J. Super. 389 (App.Div.1985), aff'd 103 N.J. 508 (1986). In support of the motion, defendant maintained that four of the eight peremptory challenges exercised by the State were used to exclude black women. The State, however, argued that all four black women had relatives or close friends who had committed or were victims of crimes, including murder. Therefore, the State was
of the opinion that, despite their assertions to the contrary, these witnesses might have formed an opinion as to the criminal justice system. In rendering its decision, the trial court noted preliminarily that one of the four requirements under Gilmore is that there be a timely motion -- one made prior to swearing the jury. Although not satisfied that this requirement had been met, the trial court began to rule upon the motion on the assumption that it was timely. However, the trial court stopped itself in mid-sentence and directed defendant to stand. The following then transpired:
THE COURT: Put on the record right now, you laughed, you rolled your head, you threw yourself back in your seat.
MR. DANIELS: Judge, I didn't, I did neither of those things, none of them, zero. And I'm tired of this kind of stuff.
THE COURT: I find you in contempt of court. You'll be able to respond right now. I declare that this jury will be released.
I find that in accordance with State v. Vasky [203 N.J. Super. 91], decided June 24, 1985, Appellate number 2291-84-T5, the following: "A 'contempt' of court is a disobedience of the Court by acting in opposition to its authority, justice and dignity. It comprehends any act which is calculated to or tends to embarrass, hinder, impede, frustrate or obstruct the Court in the administration of justice or which is calculated to or has the effect of lessening its authority or dignity; or which interferes with or prejudice[s] parties during the course of the litigation, or which tends otherwise to bring the authorities or administration of the law and [sic] into disrepute or disregard. In short, any conduct is contempt[i]ble which bespeaks off [sic] scorn or dis[d]ain for the authority of a Court or its authority in general.
"Even when a person commits contempt which directly insults the Court," in connection with such activity. [sic]
Now I will accord you an opportunity to show that you did not possess at the time the requisite mens rea but this will be done at a summary hearing immediately.
I find that I warned you yesterday about your conduct in sitting in your seat, laughing, holding your head down and besmirching what is going on in this court. I find you in contempt.
You may be heard before I pass sentence.
I find you're laughing and smiling again.
MR. DANIELS: Judge, I'm a human being. I respond. I have shown no disrespect. I cannot help but be a human being.
I have been in this courtroom now since Tuesday. Every single decision has gone against me. The Court has stood there and in my opinion, most respectfully,
has done nothing other than act as a second Prosecutor throughout these proceedings.
I have not at any time shown any disrespect to the Court. I have reacted like a human being. I was disappointed with the Court's responses, with the Court's decisions during the course of these proceedings. My response to it was not yelling and screaming, not raising my voice, not screwing up my face, not jumping up and down, not showing any disrespect to any member of this courtroom, of this staff or to your Honor.
I and [sic] a human being. I was disappointed. I sat back in my chair as I have been sitting back in my chair and I lowered my head and I robbed [sic] my eyes. That is all that I did.
I think that if we put on anybody in this courtroom right now that they would testify that I did nothing that was disrespectful to the Court. I did nothing other than sit back in my chair, put my head down and cover my eyes when the Court ruled that the objection to this case was not -- the objection in the Gilmore application was an application that was not timely made. The language could not be clearer. It must be done before the jury is sworn.
The application was made before the jury was sworn. The Court, in my view, was bending over backwards to find a way not to even hear the motion, although the motion was timely made.
THE COURT: Don't raise your voice.
MR. DANIELS: I'm sorry. I am obviously human and angry. I'm trying to show the most respect that I can for this Court.
I did not engage in any conduct which by any stretch of the imagination can be deemed co[n]temptuous.
Your Honor and I have had disagreements. We will continue to have disagreements. That's the nature of the game. I am sorry that I don't sit here and thank the Court every time it rules against me. I am sorry that I don't sit here and thank the Court when it sends my client to prison. I don't see that as being my job, my responsibility or my function in this courtroom. My job, my function, my responsibility is to be the best advocate that I can for my client and I am going to do the damnedest to try to do that.
The situations which your Honor has made reference to have been situations -- all of which have been outside the presence of the jury. I have not shown anything other than the most, utmost respect for the Court, for the system, for the entire process.
THE COURT: Do you wish to say anything further?
THE COURT: Do you wish to call any witnesses?
MR. DANIELS: May I have a few moments, your Honor?
THE COURT: Respond now. Do you wish to call any witnesses of [sic] anybody who saw what you did?
MR. DANIELS: I would like to consult with an attorney.
THE COURT: Summary hearing right now. Do you want to call a witness?
THE COURT: All right. I find that you sat there and laughed. I find that response in the best light is disingenuous. I saw you sit back there and laugh.
I didn't even get a chance to put my full opinion on the record. I told you there were four criteria under Gilmore. I indicated to you that I didn't think it was a timely objection but even assuming that it were, and giving you the benefit of the doubt, I was trying to go on to B, C and D. You interrupted by your contemptuous conduct.
I find you in contempt of Court and I sentence you to two days in the County Jail and a $500 fine, which will be carried out immediately.
I will discharge the jury before we have this carried out.
Thereupon, the trial court discharged the jury and ordered that defendant be ...