dissenting:
I disagree with the conclusion of the majority. I do not believe that the conduct of Mr. Magnes on either of the two occasions in question rose to the level of contempt.
In the first instance, the record reveals that on September 24, 1970, Judge Wilson and Mr. Magnes had discussed the possibility of convening court at nine o’clock the following morning to begin the trial of People v. Lucien, a case in which the period of the fourth term rule was about to expire. Mr. Magnes stated that he did not believe that a venire could be assembled at that hour, and no further conversation on the matter was had, leaving it uncertain as to whether court would convene at nine o’clock. On September 25, Mr. Magnes arrived in the courtroom at 9:20 and found the public defender seated at the counsel table, the venire in the box and the court apparently awaiting his presence. Upon learning that the defendant had attempted to make a pro se motion prior to his arrival, Mr. Magnes requested a conference in chambers. Once in chambers, he thanked the court for its courtesy and expressed his concern that part of the proceeding had transpired in his absence, and that he had been made to appear dilatory in the eyes of the prospective jurors. During the conference, both the comt and Mr. Magnes exchanged heated words concerning Mr. Magnes’s past conduct, which the court characterized as “deplorable”, and the urgency of the matters before the court. Mr. Magnes noted that the conference, which had occurred at his request, would probably be lengthy and requested that the jurors be allowed to leave the box and relax in the hall. This request was denied, and Mr. Magnes made the statement in chambers, “Your Honor, if you wish to impose upon that jury that is your decision to make.”, for which he was held in contempt.
To be sustained, a contempt order must meet the standard of “a serious and imminent threat to the integrity of the trial”. (Craig v. Harney (1947), 331 U.S. 367, 373.) In In re McConnell (1962), 370 U.S. 230, 234, the United States Supreme Court reviewed the summary contempt power and concluded that it was a drastic remedy, to be invoked only in the face of conduct which actuaUy obstructs the Qourt in the performance of its judicial function. Even the dissent of Mr. Justice Harlan, who felt that a court should not be so severely limited, recognized that “the contempt power should always be exercised circumspectly and dispassionately, particularly when called into play by the conduct of an attorney in the course of sharply contested litigation.” (370 U.S. at 237 (emphasis added).) The Illinois Supreme Court has frequently held that contemptuous conduct is limited to that which is “calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or to bring the administration of law into disrepute.” People v. Miller (1972), 51 Ill.2d 76, 78, 281 N.E.2d 292, 293; In re Estate of Melody (1969), 42 Ill.2d 451, 452, 248, N.E.2d 104, 105; People v. Gholsen (1952), 412 Ill. 294, 298, 106 N.E.2d 333, 335-36.
In People v. Pearson (1968), 98 Ill.App.2d 203, 240 N.E.2d 337, the Appellate Court considered whether the remark “I think your bias is showing”, made by an attorney in open court, could be the basis of a contempt conviction. Noting that the general atmosphere of the trial was strained and heated and that on several occasions the court had made insulting and provocative remarks to counsel, it concluded that, in light of all of the circumstances of the case, the remark was not calculated to embarrass, hinder or obstruct the court in its administration of justice. (98 Ill.App.2d at 212, 240 N.E.2d at 342.) Likewise in People v. Rongetti (1931), 344 Ill. 107, 176 N.E. 292, the court, in reversing several contempt convictions, stated, “plaintiff in error was given considerable provocation by the court by his actions and rulings and stinging remarks * * V 344 Ill. at 119, 176 N.E. at 296.
In the present case it cannot be said that the remarks made by Mr. Magnes, however unfortunate and improper, were such that they were calculated to embarrass the court in its administration of justice or obstruct the proceeding. The exchange occurred after a prolonged period of trials which had been hectic for both the court and Mr. Magnes. The record indicates that there was friction between the court and Mr. Magnes because of past events and that neither was capable of reacting dispassionately to the events which transpired on the morning of September 25. Mr. Magnes was legitimately concerned that he had been prejudiced in the eyes of the jury. The statement was made out of the presence of the jury, and it appears that the trial was commenced without further delay shortly thereafter. In view of these circumstances, the remarks made by Mr. Magnes were not sufficient to form the basis of a conviction for contempt. The order should be reversed.
The second instance occurred on October 14, 1970. During the direct examination of a police officer, Mr, Magnes established that the officer had shown witnesses to a shooting, some pictures, then asked whether the officer had said anything to them.
“A. Yes, sir.
Q. What did you say?
Mr. Gerber: Objection.
The Court: Now, Mr. Magnes, you know better than to get involved in hearsay at this point.”
Magnes then rephrased the question.
“Q. Other than tendering some 100 photographs to the two individuals then at the police station, did you say anything else with respect to their examination of these photographs.
A. No, sir.
Q. What then occurred, Detective Creighton?
A. They identified two pictures of being those of the individuals involved in the shooting.
The Court: Now, the jury will disregard that statement as to whether they made any identification at that time. That is not proper, and not to be considered in any way by this jury. Please, Mr. Magnes.
Mr. Magnes: Q. Did the two individuals have an opportunity to examine the photographs?
A. Yes, sir, they did.
Q. Following their examination, were certain photographs chosen?
A. Yes, sir, they were.
The Court: Now, the jury will disregard that statement.
Mr. Magnes: Your honor, may I be heard at side bar?
The Court: Yes, sir.”
As the foregoing demonstrates, Mr. Magnes attempted several times, unsuccessfully, to rephrase his question, then requested a side bar conference. The conference was moved into chambers, and an exchange occurred between Mr. Magnes and the court which is set forth in the majority opinion. As a result of this exchange, Mr. Magnes was found to be in contempt. The contempt order stated that he had pursued a line of questioning after an objection thereto had been sustained and had persistently argued a point of law after the court had indicated that it did not wish to hear further argument.
In Holt v. Virginia (1965), 381 U.S. 131, 136-38, the United States Supreme Cotut held that a stand taken by counsel in the best interest of his client cannot serve as the basis for a finding of contempt against the attorney. In In the Matter of David Dellinger (7th Cir. 1972), 461 F.2d 389 the court stated:
“Where * * * the conduct complained of is that of an attorney engaged in the representation of a litigant, the search for [the] essential elements of the crime of contempt must be made with full appreciation of the contentious role of trial counsel and his duty of zealous representation of his client’s interests.”
461 F.2d at 397. In the present case, Mr. Magnes did nothing more than take a stand which he believed to be in the best interests of his client, which was his duty as an advocate. He believed it important that the testimony concerning whether any photograph had been selected be introduced, and when objection was raised to his initial question he attempted to phrase a proper question which would elicit the desired information. When the court refused to permit what Mr. Magnes thought was a proper question, he requested a side bar conference and offered authority to support his position. The exchange which led to the allegedly contemptuous remark occurred when the court refused to permit Mr. Magnes to discuss the cases and to consider the authority offered.
In In the Matter of David Dellinger et al., supra, the court stated: “Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their chent’s behalf.” (461 F.2d at 400.) The majority disagrees with this statement, adopting a more moderate view. In the present case, the line of questioning set forth above and the colloquy in chambers, set forth in the majority opinion, are all that occurred with respect to the alleged contempt. From these, it is apparent that Mr. Magnes was not unduly persistent in attempting to ask the questions and in urging his authority upon the court. Whatever the standard to be applied, the conduct of Mr. Magnes on this occasion was nothing more than that of an advocate.
It is likely that the former differences between Mr. Magnes and the court came into play during the conference. The result of this was that Mr. Magnes made some remarks which may have been improper. Based upon the record, however, I would characterize Mr. Magnes’s action as those of an industrious attorney who believed that he was acting in the best interests of his client. The most that can be said is that in the atmosphere created by the pressures of the trial and the volume of work before the court there were strained and heated remarks. As much as these remarks are to be condemned, I do . not believe that they were calculated to embarrass the court or obstruct the proceeding. For these reasons I would reverse both orders.