dissenting. I strongly disagree with the majority in this case. I think the opinion will have a chilling effect on most lawyers who represent people accused of a crime. So far as I am concerned the damage created by this opinion actually erodes the protection offered citizens of Arkansas and the United States by the Fifth and Sixth Amendments to the Constitution of the United States and Sections 8, 10, 13 and 21 of Article 2 to the Constitution of Arkansas.
When an attorney undertakes to represent an accused he must do so with all his ability except that which might impose upon truth and justice. The attorney representing a client owes that client his full loyalty as well as a pledge to put to the best possible use his learning, talents and judgment. One who gives less than this is not worthy of his hire and is not a credit to his profession as an advocate. The trial or appellate court which prohibits a lawyer from representing his client to the very best of his ability decidedly undercuts the adversary system as it should function.
I do not interpret the facts to be the same as those enumerated in the majority opinion. For example, I find neither in the briefs nor the abstracts where the trial court instructed the petitioner not to ask any particular question. The proceedings leading up to the contempt citation occurred during a rebuttal and surrebuttal phase in the trial. A witness testified (unexpectedly to the defense) that a certain city official had accompanied the accused to an evidence room where the missing items had been stored. The official mentioned had not been listed as a witness by the defense for the simple reason that they did not know he would be referred to in testimony elicited by the state. In any event, the pertinent part of the proceedings are set out verbatim in the majority opinion. The state clearly told the court there would be no objection to testimony rebutting “what was covered on direct.” The court then stated that everyone knew the rules of rebuttal and surrebuttal and had known them since their second year of law school. That does not provide much guidance to counsel, as I have never seen the rules about which the court spoke. Petitioner appeared to seek a more definite understanding of the court’s ruling by asking the following question and receiving an answer:
I want to, your honor, but I want the court to advise and to rule on with me as to how far I can go with reference to whether or not Chester Hesselbein had ever been in that evidence room since he and Robyn were there, I want to go that far.
By the court: You can do that.
It seems to me that the court permitted petitioner to ask Hesselbein any questions relating to the direct or rebuttal testimony of witness Debbie Reynolds. It was her testimony that placed the accused and Hesselbein in the evidence room from which they allegedly removed the beer. The proffered testimony of Hesselbein clearly indicates witness Debbie Reynolds told the jury she was present when the accused took the beer from the evidence room and handed it to Hesselbein. It is also abundantly clear that the defense was never furnished any information indicating Hesselbein would be named in any manner at the trial. In fact Debbie Reynolds refused to be interviewed by the petitioner prior to trial. During the testimony of Debbie Reynolds she stated the diagram she made represented the evidence room at the time the beer was delivered. She further testified she had a key to the evidence room and told about many other details including which direction the door opened and where she stood while the accused and Hesselbein took the beer from the evidence room. No doubt the state knew Reynolds intended to implicate Hesselbein when she testified and that her accusations would require Hesselbein to either silently admit his involvement or take the stand and attempt to rebut her testimony. This placed the defense in an untenable position. As they were not possessed of clairvoyant powers, they could not discover the unknown, witness in time to furnish the name to the state, which already knew it anyway. The court refused to allow Hesselbein to give direct defense testimony because his name had not been furnished to the state prior to the trial.
An additional fact in this case is that the accused was advised by letter from the state that any attempt on his part to contact any witnesses about the ongoing investigation of the police department might result in a tampering charge. It seems to me that the accused’s hands were tied behind his back while he fought to defend himself.
Furthermore, it was the state that instituted the charge of contempt against petitioner. Whatever the conduct of petitioner was, it was not obvious at the time to the court or at least the court did not interrupt petitioner until the state moved to hold him in contempt. I submit that most lawyers and j udges would be hard put to write down the rule relating to surrebuttal. In any event petitioner was neither cautioned nor admonished by the court prior to the state’s motion.
Debbie Reynolds testified before the jury that the accused and Hesselbein were together in or at the evidence room and took the beer. Petitioner had been given express permission to question Hesselbein on matters testified to by Reynolds in direct testimony or in rebuttal. In my opinion petitioner was definitely within the bounds of proper surrebuttal.
Members of the bar should be encouraged to represent their clients with vigor and should be allowed to do so without fear of punishment for contempt except in cases where it disrupts the process or reflects upon the judiciary or officers of the court. The majority opinion reflects adversely upon the necessary degree of devotion an attorney may use to protect his client’s rights, and in so holding impinges upon the rights of every attorney in this state to defend his clients. I would not have them looking constantly over their shoulders and wondering if their defense would bring a contempt charge down upon them.