782

Direct Contempt—Summary Punishment at the End of Trial-Judicial Bias

"[T]here are two policies which may justify summary contempt proceedings before the trial judge. First, it may be necessary to preserve order in the courtroom in order to protect the authority of the court and the integrity of the trial process--the policy of preserving order. Second, there is a notion that when contemptuous conduct has occurred before the judge in open court, it would be a useless formality and a waste of resources to indulge in a full hearing because the judge, having witnessed the conduct, is competent to interpret the facts and apply the law--the waste of resources justification." Cooke v. United States, 267 U.S. 517, 534 (1925); United States v. Meyer, 462 F.2d 827, 831 (D.C.Cir. 1972). When a summary contempt proceeding is conducted at the end of a trial, the policy of preserving order in the courtroom is inapplicable since the trial has already been terminated. If the judge is biased against the contemnor, then the waste of resources justification is absent since the judge will be unable to competently interpret the facts and apply the law. Bias arises when the judge becomes "personally embroiled" with the contemnor, Offutt v. United States, 348 U.S. 11, 17 (1954), when he necessarily becomes embroiled in a running controversy with the contemnor so that he might naturally be expected to harbor "marked personal feelings," Taylor v. Hayes, 418 U.S. 488, 503 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971), or when he is in adversary posture with the contemnor, even if he has not been personally attacked. Johnson v. Mississippi, 403 U.S. 212, 215-16 (1971). It should be noted that it is not the contemnor's conduct alone which determines whether bias exists, but rather the character of the judge's response to such conduct. Taylor, 418 U.S. at 503 n. 10. During the course of a trial, a judge may impose immediate summary punishment upon a contemnor even if he is biased. The policy of preserving order in the courtroom outweighs the waste of resources justification. Mayberry, 400 U.S. at 463; United States v. Seale, 461 F.2d 345, 351 (7th Cir. 1972). When the judge chooses to act summarily at the end of the trial (when the policy of preserving order in the courtroom is inapplicable), he may do so only in the absence of bias. When bias is present, the judge must disqualify himself and permit another judge to conduct the contempt proceeding pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. Compare Taylor, 418 U.S. 488; Mayberry, 400 U.S. 455; Offutt, 348 U.S. 11; Meyer, 462 F.2d 827; In re Dellinger, 461 F.2d 389 (7th Cir. 1972); and United States v. Seale, 461 F.2d 345 with Sacher v. United States, 343 U.S. 1 (1952); Weiss v. Burr, 484 F.2d 973 (9th Cir. 1973), cert. denied, 414 U.S. 1161 (1974); United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert. denied, 384 U.S. 1003 (1966); United States v. Galante, 298 F.2d 72 (2d Cir. 1962). In the absence of bias, where the contemnor is an attorney the preferred procedure is for the judge to act summarily at the end of the trial rather than during the trial. Such a procedure minimizes the prejudice to the attorney's client which arises from the contempt action. Taylor, 418 U.S. at 498; Mayberry, 400 U.S. at 463 (policy is not present when defendant is proceeding pro se); Sacher, 343 U.S. 1. To determine bias, the Supreme Court has held that: [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky v. United States, 114 S.Ct. 1147, 1157 (1994). See also In Re International Business Machines Corp., 45 F.3d 641, 644 (2d Cir. 1995). [cited in USAM 9-39.000]