Direct ContemptSummary Punishment at the End of
"[T]here are two policies which may justify summary contempt
proceedings before the trial judge. First, it may be necessary to preserve
in the courtroom in order to protect the authority of the court and the
of the trial process--the policy of preserving order. Second, there is a
that when contemptuous conduct has occurred before the judge in open court,
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
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
the policy of preserving order in the courtroom is inapplicable since the
has already been terminated. If the judge is biased against the contemnor,
the waste of resources justification is absent since the judge will be
competently interpret the facts and apply the law. Bias arises when the
becomes "personally embroiled" with the contemnor, Offutt v. United
States, 348 U.S. 11, 17 (1954), when he necessarily becomes embroiled in
running controversy with the contemnor so that he might naturally be
harbor "marked personal feelings," Taylor v. Hayes, 418 U.S. 488, 503
(1974); Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971), or when
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
be noted that it is not the contemnor's conduct alone which determines
bias exists, but rather the character of the judge's response to such
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
in the courtroom outweighs the waste of resources justification.
Mayberry, 400 U.S. at 463; United States v. Seale, 461 F.2d
351 (7th Cir. 1972). When the judge chooses to act summarily at the end of
trial (when the policy of preserving order in the courtroom is
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
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
461 F.2d 389 (7th Cir. 1972); and United States v. Seale, 461 F.2d
with Sacher v. United States, 343 U.S. 1 (1952); Weiss v.
F.2d 973 (9th Cir. 1973), cert. denied, 414 U.S. 1161 (1974);
States v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert. denied,
U.S. 1003 (1966); United States v. Galante, 298 F.2d 72 (2d Cir.
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
rather than during the trial. Such a procedure minimizes the prejudice to
attorney's client which arises from the contempt action. Taylor, 418
at 498; Mayberry, 400 U.S. at 463 (policy is not present when
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
events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
they display a deep-seated favoritism or antagonism that would make fair
Liteky v. United States, 114 S.Ct. 1147, 1157 (1994). See
In Re International Business Machines Corp., 45 F.3d 641, 644 (2d
[cited in USAM 9-39.000]