On appeal from and on certification to the Superior Court, Appellate Division, whose opinion is reported at 219 N.J. Super. 550 (1987).
Opposed -- None. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein join in this opinion.
Justice Felix Frankfurter wrote, dissenting in Sacher v. United States, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952):
In administering the criminal law, judges wield the most awesome surgical instruments of society. A criminal trial, it has been well said, should have the atmosphere of the operating room. The presiding judge determines the atmosphere.
He is not an umpire who enforces the rules of a game, or merely a moderator between contestants. If he is adequate to his functions, the moral authority which he radiates will impose the indispensable standards of dignity and austerity upon all those who participate in a criminal trial.
[ Id. at 37-38, 72 S. Ct. at 468-469, 96 L. Ed. at 738.]
This case tests the measure of the discharge of that responsibility by a trial judge. Specifically, the question is whether a judge may summarily punish for contempt an attorney who mockingly laughed at the court's rulings in an open proceeding.
Authors Norman Dorsen and Leon Friedman quote Justice Frankfurter when noting that the conduct of a modern criminal trial demands of a judge three distinct leadership qualities. N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 192-93 (1973) [hereinafter Dorsen & Friedman]. Foremost, "a judge is, in the first place, a judge." Id. at 192. He or she is the reflective passive minister of justice neutrally resolving the questions of law and procedure involved in the matter. The judge is next a "traffic policeman," required to keep the extraordinary sustained flow of criminal trials moving with all deliberate speed. Id. at 193. Third, the judge is the exemplar of justice. "He personifies the abstract elements of the legal process -- the need for fairness, understanding, and evenhanded application of the law." Ibid.
This role is a demanding one for any trial judge, and it is not trite to observe that what distinguishes our legal system from all others is our unflinching insistence on the dignity of the American courtroom as the ultimate repository of our liberties. Hence, we are satisfied that the judge's nondelegable duty to "impose the indispensable standards of dignity and austerity upon all those who participate in a criminal trial," Sacher v. United States, supra, 343 U.S. at 38, 72 S. Ct. at 469, 96 L. Ed. at 738, justifies the court's summary imposition of contempt on the attorney whose conduct threatened the dignity of that proceeding. We find, however, that although the attorney's conduct warranted censure, the procedures were not consonant
with the imposition of loss of liberty. We hold that the Appellate Division correctly vacated the jail sentence.
The facts of this case are not particularly unusual. They disclose the kind of incident that might occur any day in a courtroom. For purposes of this appeal, we will accept the version of the facts set forth in the attorney's briefs.
James B. Daniels, an attorney with the Office of the Public Defender in the Union County region, represented a client in a criminal trial that began on March 18, 1986. During pretrial hearings, there was "long and passionate argument" over the admissibility of the results of certain polygraph (lie-detector) tests. Mr. Daniels moved to exclude the results of the State's lie-detector tests, or in the alternative to rebut the State's tests with expert testimony and/or the defendant's own lie-detector test results. The attorney had previously stipulated to the admissibility of the State's polygraph test and the inadmissibility of the defense test.*fn1 The court enforced the stipulation.
Mr. Daniels then moved that the court take judicial notice of certain scholarly articles so that Mr. Daniels could educate the jury on what he considered to be the crucial evidence in the case. The court denied that motion too after considerable oral argument. Defendant states that at this point "the court took exception to Mr. Daniels' response to his ruling," a reaction
that the judge characterized as Mr. Daniels "sitting there shaking [his] head, smiling and being disrespectful." The judge warned Mr. Daniels that further display of disapproval with the court's rulings would result in incarceration. The attorney responded orally to the judge's admonitions, but the record does not include any reference by the stenographer that Mr. Daniels rolled his eyes or laughed aloud or employed a sarcastic tone in response to the court. Nor did the contemporaneous description of the event by the court indicate that Mr. Daniels did more than smile and shake his head in response to the original ruling.
Immediately following a short recess, the attorney apologized to the court, explaining that his reaction, shaking his head, was a "very human response" and assuring the court that he had intended no disrespect. The judge responded, "Put it behind us and forget about it." The remainder of the day was uneventful.
The second day of the pretrial proceedings opened with arguments on the admissibility of the victim's identification. Again the court ruled against the defendant. Following that ruling, Mr. Daniels sought permission to call a psychologist as an expert to testify to the underlying lack of reliability in the lie-detector test. The judge stated that he wished to think about the request, but that his initial response was negative. Most of the day was spent picking the jury.
Following jury selection but before the jury was sworn, and out of its presence, defense counsel moved for a mistrial. He relied on State v. Gilmore, 199 N.J. Super. 389, 489 A.2d 1175 (App.Div.1985), aff'd, 103 N.J. 508, 511 A.2d 1150 (1986), alleging that the prosecutor had used his peremptory challenges systematically to exclude black women from the jury. Defendant emphasizes that in the course of denying the Gilmore motion, the judge suggested that the motion was untimely despite the fact that it was made before the jury was sworn. The judge abruptly interrupted his ruling to criticize Mr. Daniels'
reaction to the court's ruling, stating, "Put on the record right now, you laughed, you rolled your head, you threw yourself back in your seat." As with the incident the day before, the judge's reaction was prompted by Mr. Daniels' physical reaction to the judge's ruling, not by any statement the attorney made.
Mr. Daniels immediately protested that the judge's characterization was not accurate. Defendant asserts that "[b]efore giving Mr. Daniels an opportunity to be heard as to either guilt or punishment [the court] found Mr. Daniels in contempt and released the jury, thereby terminating the proceeding." The court said: "I find you in contempt of court. You'll be able to respond right now. I declare that this jury will be released."
At that point the court discharged the jury. The court referred to the opinion of State v. Vasky, 203 N.J. Super. 91, 495 A.2d 1347 (App.Div.1985) (detailing contempt powers), and then declared: "I find you in contempt. You may be heard before I pass sentence." Mr. Daniels stressed that his actions were only a "human" reaction to his disappointment with the court's rulings and that he intended no disrespect, and denied again the judge's characterization of his conduct. He said, "I did nothing other than sit back in my chair, put my head down and cover my eyes when the Court ruled [against the Gilmore application]." He immediately objected further to the court's Gilmore ruling, and the judge responded, "Don't raise your voice." Defendant asserts that other persons present in the courtroom, including the court reporter and the judge's court clerk, later attested that as far as they were able to observe, Mr. Daniels did not throw himself back in his chair, laugh, or utter any sound prior to being held in contempt, nor did he sound sarcastic or disrespectful. However, we must deal with the record as we have it. The record discloses that Mr. Daniels was asked if he wished to call any witnesses. He declined. Mr. Daniels asked to consult with an attorney. The court refused that request. Defendant states that he was denied the opportunity to prepare his defense. Having been denied the
opportunity to speak to any prospective witnesses, he says that there was no other evidence that he could have offered in his defense.
Finding that Mr. Daniels had laughed at its rulings in open court, the court then found the defendant "in contempt of court," and proceeded to impose sentence. He said, "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."
Defendant obtained a stay of imprisonment and of the fine. On March 24, 1986, five days later, the trial court issued a supplemental order of contempt. That order, in defendant's view, both elaborates on and conflicts with the contemporaneous record. On appeal, the Appellate Division affirmed the judgment of contempt, but it vacated the sentence of confinement. In re Daniels, 219 N.J. Super. 550, 530 A.2d 1260 (1987). In that court's view, imprisonment was not an appropriate punishment, inasmuch as harm to the judicial system was not severe and the $500 fine and rebuke in open court should have sufficient deterrent effect. Id. at 592, 530 A.2d 1260. One member dissented, finding no contempt as a matter of law, and suggesting an evidentiary hearing in another trial court. Id. at 592-93, 530 A.2d 1260 (Skillman, J.A.D., dissenting). Here, he emphasized, the contemptuous conduct, consisting of facial expressions and gestures, was not "unambiguously set forth on the trial record." Id. at 598, 530 A.2d 1260. We granted defendant's appeal as of right under Rule 2:2-1(a)(2), and his petition for certification, 109 N.J. 496, 537 A.2d 1287 (1987).
There can be no doubt of the existence of the summary power of contempt. We may draw on the useful expression of the doctrine found in Justice Handler's concurring opinion in In
[T]his case involves the inherent contempt power of the judiciary to challenge and punish affronts to its authority. It has long been recognized that there are occasions when this inherent authority must be exercised both swiftly and summarily in order to ensure obedience to court orders and respect for court procedures. See In re Oliver, 333 U.S. 257, 274, 68 S. Ct. 499, 508, 92 L. Ed. 682, 695 (1948); Cooke v. United States, 267 U.S. 517, 534, 45 S. Ct. 390, 394, 69 L. Ed. 767, 773 (1925); Ex parte Terry, 128 U.S. 289, 302-303, 9 S. Ct. 77, 79, 32 L. Ed. 405, 408 (1888). The summary contempt power is integrally related to judicial self-preservation. State v. Zarafu, 35 N.J. Super. 177, 182 [113 A.2d 696] (App.Div.1955). "The sole credible basis for the summary contempt process is necessity, a need that the assigned role of the judiciary not be frustrated." In re Fair Lawn Education Ass'n, 63 N.J. 112, 114-115 [305 A.2d 72], (1973), cert. den. 414 U.S. 855, 94 S. Ct. 155, 38 L. Ed. 2d 104 (1973); McAllister v. McAllister, 95 N.J. Super. 426, 440 [231 A.2d 394] (App.Div.1967). This judicial "power is as ancient as the courts to which it is attached and 'as ancient as any other part of the common law.'" In re Caruba, 139 N.J. Eq. 404, 427 [51 A.2d 446] (Ch.1947), aff'd 140 N.J. Eq. 563 [55 A.2d 289] (E. & A.1947), cert. den. 335 U.S. 846, 69 S. Ct. 69, 93 L. Ed. 396 (1948) (quoting Rex v. Almon, 97 Eng.Rep. 94, 99 (K.B.1765)). (footnote omitted).
The New Jersey Code of Criminal Justice, while abolishing common-law crimes, preserves this judicial power to punish for contempt. N.J.S.A. 2C:1-5(c). The power is further defined by statute, N.J.S.A. 2A:10-1 to -8, and in our Rules of court. Rule 1:10-1 provides, "Contempt in the actual presence of a judge may be adjudged summarily by the judge without notice or order to show cause." The expressions "adjudged summarily" and "criminal contempt power" are familiar to judges and lawyers but may not be equally familiar to all others. Thus we explain. The phrase "contempt power" really means the power to punish, and in our society that means the power to fine or imprison one who has violated judicial authority. There are two strands to the contempt doctrine that are sometimes not easily separated in its fabric. One strand ...