On appeal from Superior Court, Law Division, Passaic County.
Petrella, Baime and Ashbey.
[224 NJSuper Page 107] Attorney William J. DeMarco appeals from determinations finding him guilty of two separate contempts in the face of the court. R. 1:10-1. He argues on this appeal that he should
have been allowed to obtain an adjournment to get transcripts of the colloquy which occurred during a gambling conspiracy trial captioned State v. Carmine Mancinelli et al. He also argues that alternatively the trial judge should have handled all of the contempt proceedings in accordance with the procedures under R. 1:10-2. Finally, he argues that statements he made to the trial judge were not contumacious per se when reviewed in the context of the trial proceedings contemporaneous with the statements. On this appeal we consider the matter de novo and make independent findings. R. 2:10-4.
During pre-trial proceedings on December 9, 1986 about whether the press and the public should have access to particular documents, DeMarco challenged what he referred to as the far-reaching nature of the proposed form of order. He posed and answered a hypothetical question by saying that the judge would stop the trial and produce the documents even to school children who might be observing the trial. DeMarco stated "[t]hat's what you want to happen, obviously, because you want this order to be signed." The transcript reveals the following colloquy:
THE COURT: I repeat, Mr. DeMarco, I made no decision. I don't want this order to be signed, as you put it.
Now, please present your arguments as an attorney should present arguments.
MR. DE MARCO: I am presenting my argument.
THE COURT: I made my position. I have an open mind.
MR. DE MARCO: You say you have an open mind. It is my experience during the course of this limited pretrial proceeding that every argument defense counsel has made has been confronted with your absolute certainty about how wrong we are.
THE COURT: Mr. DeMarco, that statement borders on being contemptuous.
MR. DE MARCO: If you feel I'm contemptuous you have a remedy.
THE COURT: Mr. DeMarco --
MR. DE MARCO: If you feel I'm contemptuous --
The court recessed, and advised DeMarco that it was instituting a summary contempt proceeding under R. 1:10-1 and directed him to immediately show cause why he should not be held in
contempt and adjudged summarily because of statements which the judge then read (presumably after having the court reporter transcribe the few pages of the record that were involved). The court noted that DeMarco had refused to calm down and said twice that if the judge felt that he was being contemptuous, he had a remedy. DeMarco then asked for a recess of about 20 to 30 minutes. The court granted the recess and DeMarco requested Joseph Afflitto, an attorney representing a codefendant, to represent him in the contempt proceeding. The court then rejected a request by counsel for a further adjournment to study the transcript and indicated that if it was a question of an hour or two to have the court reporter read back whatever transpired, he would gladly do that, but he would not adjourn the hearing beyond that. The court then stated that it would give counsel a few hours and continued the matter until 1:30 p.m. Because the issue raised by the press had not been resolved, the court decided to complete the hearing on the proposed form of order before addressing the contempt hearing. When DeMarco was heard concerning the proposed form of order, he stated:
[MR. DE MARCO:] . . . The press and the Court and Greco says the press is the vehicle of the public and in that manner they get to know what's in the transcript because they use the press. But nowhere do I see any one of these cases -- I'm sorry, was I disturbing the Court ? [Emphasis added].
THE COURT: Mr. DeMarco, what's the purpose of that statement?
MR. DE MARCO: I saw you were -- you just leaned back quickly. I thought I was disturbing the Court.
THE COURT: Are you baiting the Court once again, Mr. DeMarco?
MR. DE MARCO: I have never baited the Court before. I think you are baiting me now. I really can't finish.
THE COURT: There you go again.
MR. DE MARCO: I can't continue the argument. Every time you argue something --
THE COURT: Please finish.
MR. DE MARCO: I really can't. I can't. I got a threat of contempt over my head. I'm making a legitimate argument to you. You're accusing me of baiting.
THE COURT: I'm listening to you.
MR. DE MARCO: I really can't continue when I get accused of baiting a Court when I'm making a legitimate argument. You know, it begins to -- I begin to be
frightened to say anything. The next thing you're going to hold me in contempt for the way I sit down.
THE COURT: You are to present your arguments.
MR. DE MARCO: I'm sorry, I cannot continue.
The summary contempt proceeding continued on December 10, 1986 and the judge included the statements made by DeMarco at the end of the morning hearing. The judge stated that he did not defer the hearing partially because DeMarco had been abusive to him one day when a "Mr. Bidnik" was in the courtroom. However, he stated that for purposes of the contempt hearing he was not considering, and would not "consider anything other than appear[ed] in [the] transcript." After this hearing was completed the judge withheld adjudication until the conclusion of the trial. There appears to have been no adjudication ever made with respect to this incident. The judge apparently took no further action with reference to the earlier remarks of DeMarco on December 9, and 10, 1986. Whether this was due to the court's acceptance of counsel's suggestion that perhaps time might cool things down does not appear in the record. The judge may have thought this was enough warning or that after reflection DeMarco might offer some form of apology for what occurred. Since there is no adjudication relative to December 9, we do not consider it. We do note that the record reflects a disrespectful and defiant attitude of counsel toward the court.
On December 15, 1986, while the judge was hearing arguments about the admissibility of transcripts of certain intercepted telephone conversations, DeMarco indicated to the judge that he would use in cross-examination the fact that there were mistakes as to dates and times. The prosecutor then argued:
MR. CAMPOLO: What I wanted to say, we even got back to format here, the format for each one of these transcripts vary significantly. There's not even any assumption that any of this introductory matter, other than the actual transcripts, will ultimately be permitted to the jury because someone who sponsors in this evidence will have to testify about the date and time.
This is a question of really housekeeping for the Court, whether you want to allow this sort of introductory information on the transcript, whether some counsel may reserve the right [to] redact it altogether.
Again, I'm looking for some simplicity here, and defense counsel even concedes that we're correcting these transcripts as we go through. Some of the words are inaccurate, some of them are misspelled, there are differences of interpretation.
And for them now to argue that somehow the mistyping of the day of the week on one of these transcripts by some unknown person somehow raises a crucial issue of cross-examination, is preposterous. I think it's a fraud, and I would -- [Emphasis supplied].
DeMarco objected, arguing that if the prosecutor wanted to get personal, he was "fooling with the wrong crowd."*fn1 The following colloquy occurred:
THE COURT: I would urge counsel --
MR. DE MARCO: Urge the Prosecutor, he started it and I'll finish it.
THE COURT: Please at all times conduct yourselves as attorneys. And if you avoid the use of strong language, please avoid it when referring ...