Commonwealth v. BETHEA

“Mr. Justice Harlan,

concurring.

“I concur in the judgment of reversal solely on the ground that these contempt convictions must be regarded as infected by the fact that the unprecedented long sentence of 22 years which they carried was imposed by a judge who himself had been the victim of petitioner’s shockingly abusive conduct. That circumstance seems to me to deprive the contempt proceeding of the appearance of evenhanded justice which is at the core of due process. For this reason I think the contempt convictions must be set aside, leaving the State free to try the contempt specifications before an*177other judge or to proceed otherwise against this petitioner.

a

“Mr. Justice Black concurs in the judgment and with all the opinion except that part which indicates that the judge without a jury could have convicted May-berry of contempt instantaneously with the outburst .”

It cannot escape anyone’s notice that in Mayberry, 400 U.S., supra, no mention was made, and in Illinois v. Allen no mention was made, except by Justice Black, of the right of a defendant who commits one or more outrageous attacks on a Judge in the Courtroom to a jury trial. On the contrary, the Supreme Court granted a trial Judge or trial Court the right and power to instantly and summarily find a defendant guilty of contempt of Court and impose a prison sentence on the contemptuous defendant.

It is clearly obvious that the preservation and protection of our Courts and all proceedings before these Citadels of Justice, and particularly their right and power to administer Justice quickly and with order, dignity and decorum, free from disruption, disorderly or contemptuous conduct, is of greater importance than the Confrontation or Jury Trial provisions which protect the rights of a person on trial for a criminal offense.

I hope this means that the Court has abandoned or changed—and, if not, I respectfully and strongly urge it to do so—its two prior decisions which grant a jury ■tidal to a defendant who is sentenced for more than six months for degrading or vilifying a Judge in the Courtroom. This grant of a jury trial in such situations degrades and makes a mockery of our Courts and our Judicial system and is very unwise. It is even more unwise for the following reason, which has not been considered, or at least has never been mentioned by any Supreme Court, namely, if there is a jury trial, the *178defendant can call the trial Judge as a witness and cross-examine him to his heart’s content and thus subject him to ridicule and contempt. What a misfortune for our Judges and their esteem in the eyes and minds of the Public! This is totally unnecessary and unwise, because a trial Judge’s Order and sentence for contempt of Court is subject to review by an Appellate Court for an abuse of discretion, or an error of law, or a violation of the Constitution.

In the light of these decisions, and particularly in the face of all the factors and the reasons hereinabove set forth, I do not see how it is possible for any Court —and I say this with due deference—to require a jury trial for a person who has committed a direct criminal contempt of Court in the presence of the Court and has been sentenced to a year for each contempt, when they have wisely permitted, whenever appropriate, a Court to have a disruptive defendant bound and gagged and removed from the Courtroom in direct conflict with the Sixth Amendment to the Constitution. If that is both wise and necessary—and it certainly is!—it is equally wise and necessary to permit a Judge before whom a direct criminal contempt has occurred to impose a reasonable sentence upon the disorderly or disruptive or contemptuous person who has made a mockery of our citadels of Justice and our Judicial System. The contempt sentence will, I repeat, always be subject to review for an abuse of discretion or an error of law or a violation of the Constitution.

When two provisions of the Constitution are conflicting or overlapping, or even when a Constitutional provision appears to be mandatory, Courts must decide from a totality of the circumstances (1) which provision of the Constitution shall prevail in each particular case, and (2) whether the challenged Constitutional provision is absolute and allows no exception, and (3) *179exactly how each provision shall be applied, and (4) when and why each should be retroactive.

In my opinion, the sentences imposed upon William Boyer and Bethea for direct criminal contempt of Court were proper and appropriate and did not violate any law or due process or any Constitutional right.