 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
STATE v. JENKINS12/12/1997
the matter should proceed no further. However, if the attorney refuses to explain, the judge may treat the offense as a direct contempt. [Citation omitted.] Both the absence and the refusal are in the presence of the judge, who may determine the matter summarily. Similarly if the attorney offers an insulting, frivolous, or clearly inadequate explanation, both elements of the offense are in the presence of the judge, who may treat the matter as a direct contempt. [Citation omitted.] Of equal importance the refusal to explain or an offensive explanation creates the need in the court to deal immediately with the matter. [Citation omitted.] The need for immediate adjudication and punishment outweighs the procedural safeguards that would ensure from referring the matter to another judge. In both instances, the attorney has a right to a hearing, albeit before the offended judge." 84 N.J. at 126-27.
Johnson's absence from Judge Buchele's courtroom from 10:30 a.m. to 1:50 p.m., and his late appearance occurred in the court's presence. Also, his failure to advise Judge Buchele of his whereabouts on July 2, 1996, and his unsatisfactory explanation for his absence and tardiness occurred in the court's presence. During the instanter contempt hearing, Johnson explained that he had scheduled the conflicting hearing before Judge Parrish because cases set for preliminary hearings were usually called late, after cases involving waivers or pleas were taken. Johnson apparently thought the hearing before Judge Parrish would conclude before the Jenkins preliminary hearing started. He admitted not informing Judge Buchele of either his conflicting hearing or departure for
Lawrence. Both Johnson's absence and his explanation for his absence were facts that Judge Buchele had first-hand knowledge of at the time of the occurrence. Under the hybrid approach, Johnson's conduct is direct contempt.
Johnson's only excuse for his actions was that he believed other attorneys had gotten away with being late under similar circumstances, and he felt he was being singled out unfairly. Johnson stated: "I will ride you [Judge Buchele] like a horse to make sure everybody else gets the same treatment and I'll have my staff up here every day watching to see who is late and who has been sanctioned." (During our oral argument counsel for Johnson apologized for Johnson's remarks.) Johnson was challenging the district court's authority to sanction him. Immediate action was needed, particularly in view of Johnson's attitude toward the district court. Johnson needed to be made aware of the importance of prompt appearances at future hearings. Otherwise, there is an entire breakdown of the criminal justice process. See United States v. Wilson, 421 U.S. 309, 319, 44 L.Ed.2d 186, 95 S.Ct. 1802 (1975).
Jurisdiction
Johnson argues that the district court had no jurisdiction to sanction him for indirect criminal contempt. He contends that there is no procedure for an indirect criminal contempt sanction in a criminal case, citing K.S.A. 1996 Supp. 20-1204a(a), which begins: "When an order in a civil action has been entered . . . ." Our determination that Johnson was in direct contempt disposes of his jurisdictional argument. However, absence of a reference in K.S.A. 1996 Supp. 20-1204a(a) to criminal cases does not negate jurisdiction over an indirect contempt arising in a criminal case.
Waiver of Statutory and Due Process Requirements
The district court's second order says that Johnson "waived any rights to further proceedings" by insisting on a hearing instanter following the completion of the preliminary hearing on July 2, 1996. This order recites that three times, the distri
Page 1 2 3 4 5 6 7 8 9 10 11 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|