dissenting:
I respectfully dissent. A review of the record does not justify the conclusion that the court was hindered and obstructed in continuing the case before it by the conduct of the respondent attorney.
The principles set forth in In re McConnell (1962), 8 L.Ed.2d 434, appear to me to be applicable. The court states, at pages 438, 439
“The arguments of a lawyer in presenting his client’s case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here.
While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients’ cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice.”
The Illinois Appellate Court in People v. Pearson (1968), 98 Ill.App.2d 203 followed In re McConnell and reversed a contempt judgment against an attorney who said to the judge during the trial, “I think your bias is showing”. The court on review considered that this was not a proper statement, that the attorney should have been ashamed to have made it, but that it was not an adequate basis for a contempt conviction, concluding (at page 212):
“Under all the circumstances, and especially in light of the difficulties Aimen encountered in seeking to defend his client, we feel that his conduct throughout the trial, while not exemplary, was not shown to have been more than a lawyer’s strenuous and persistent presentation of his client’s case, and we therefore cannot bring ourselves to affirm the contempt conviction. See In re McConnell, 370 US 230, 236. Furthermore, we do not consider his comment about bias, made in the heat of battle, to have been ‘calculated to embarrass, hinder or obstruct a court in the administration of justice.’ (Emphasis supplied.) People v. White, 8 Ill.App.2d 428, 437, 131 NE2d 803; People v. Gholson, 412 Ill. 294, 298, 106 NE2d 333.”
In People v. Loughran (1954), 2 Ill.2d 258, 265, our Supreme Court considered that repeated admonitions by the trial judge to the defense attorney to confine himself to the evidence, did not indicate that the court was embarrassed in his duties in any way but indicated rather that the court “was in complete command of the situation”.
So here, nothing in the record indicated to me that the court was unable to conduct orderly and fair proceedings because of counsel’s conduct.
The climate of the trial was established in the preliminary discussions in chambers. At the very first the court showed its pique at the effort of counsel to subpoena police records concerning the arresting officer. The defendant was not entitled to the records but in denying the motion the court characterized counsel as “out of line” and said, “I don’t know where you get the idea you can look at confidential police records. Not in my court room”, and prevented any explanation of counsel’s position on the question.
The further discussions in chambers are set forth in part in the majority opinion, but no claim is anywhere made that counsel was considered to be contemptuous in these colloquies. The court’s references to “conning” the jury and his lack of responsibility for counsel’s “knowledge or lack of knowledge”, were provocatory, but nothing said by counsel in chambers is suggested as the alleged contemptuous conduct found by the court. The clear indication is in the record, however, that the court strongly disapproved of the manner in which counsel was trying his case.
Although counsel correctly objected to a misstatement by the prosecutor that a question had been previously answered by the defendant, it was wrong for him to then state “I select whom I represent”. It was wrong for counsel to suggest that he would not agree to the placing of the original driver’s license in evidence because he didn’t want his client “to be stopped by Officer Ohlman on the way home”. But we do not believe that this non-exemplary conduct constituted conduct to be punished by contempt, particularly when the court found “obviously” no ground for a mistrial to that point.
The so-called “gratuitous remarks” which finally resulted in the court declaring a mistrial consisted solely of the objection made by counsel to the court’s (with no previous objection by opposing counsel) admonishing him in the presence of the jury to “refrain from rephrasing the answers”. Even if the court was within its discretion in its interjection, it was also within the right of counsel to preserve what he considered to be prejudicial by a motion for a mistrial.
The court, in my opinion, did not, by counsel’s conduct, ever lose control of the trial as predicated in the majority opinion.
I would reverse the judgment of contempt on this record.