Jeffrey Blount made the mistake of smiling when he was in court January 6, 2011, on a harassment charge. Although harassment is only a minor violation, like a traffic ticket — Utica City Court Judge Gerald Popeo became so enraged at the 20-year-old Blount that he yelled “You’re standing there with a grin that I would love to get off the bench and slap off your face!” Popeo then charged Blount with contempt of court, summarily found him guilty, and sentenced him to 30 days in jail, ending his tirade with “Have a good day, Mr. Blount.”

Jeffrey Blount stands alongside Oneida County Assistant Public Defender Tina Hartwell in Oneida County Court on January 7, 2011. (Rocco LaCuca - Utica Observer-Dispatch)

Blount’s public defender Tina Hartwell promptly filed a motion in the Oneida County Court to overturn his contempt conviction, arguing that Judge Popeo didn’t go through the proper procedures before finding Blount guilty of contempt of court and imposing a 30-day jail sentence. The motion was heard on Friday the 7th by Judge Barry Donalty. He ruled that the proper avenue to challenge Blount’s contempt of court conviction was in the New York Supreme Court.

The local media picked up the story and covered it over the weekend. Hartwell explained that Blount didn’t do anything wrong because he smiled when he thought the judge had cracked a joke.

On Monday morning Judge Popeo ordered an unscheduled hearing, during which he vacated Blount’s contempt conviction. Popeo justified his action by saying, “In my effort to address what I felt was inappropriate conduct and being upset with that conduct, I reacted with some intemperate words and did not fully and completely follow the procedure in place in order to hold a person in contempt.”

Public Defender Hartwell was pleased with the judge’s decision that was in response to the media and legal storm that was brewing because she was aggressively challenging what she believed was his illegal action against her client. Hartwell told reporters after the hearing, “This is what we do. This is our job. We’re here to protect the people’s rights, and that’s what we did. It’s our responsibility to follow through on these matters.”

After the hearing Judge Popeo’s clerk told reporters he couldn’t comment on the case due to ethics laws.

A person accused of civil contempt of court has the due process rights of notice of the charge against them and the opportunity to defend him or herself, although the standard for a conviction is a preponderance of the evidence. By acting quickly to overturn Blount’s summary contempt conviction that violated his constitutional due process rights, Judge Popeo may have avoided being disciplined by the New York State Commission on Judicial Conduct. The Utica Observer-Dispatch cited three recent cases in which a judge was admonished for abusing their contempt power:

• New Hartford Town Court Judge James Van Slyke was admonished in 2006 for holding Sebastiano Pagano and his attorney, Carl Scalise, in contempt of court without first warning either man of their conduct. Instead, when Scalise attempted to note a comment on the record, Van Slyke simply replied, “That last remark just cost you 50 dollars.” And when Pagano interrupted the judge by saying he knew he was going to be found guilty, Van Slyke said, “And you’re in contempt, 50 dollars.”
• A Rensselaer County family court judge was censured in 2008 after she told an individual in her courtroom, “If you don’t shut your mouth right now, you’ll be leaving in handcuffs.” She then held the man in contempt without giving him an opportunity to defend himself.
• A state Supreme Court justice in Queens County was censured in 2005 after holding a plaintiff in contempt when the man’s attorney simply stated on the record how his client had approached the judge in a parking lot. The judge inappropriately tried to use the threat of contempt to intimidate the attorney into not speaking on his client’s behalf.

By Hans Sherrer
Justice Denied

A courtroom might not be the wisest place to chew gum and blow a bubble, since a judge might overreact as Mirza Zukanovic found out the hard way.

In June 2010 the 20-year-old Zukanovic was chewing gum while sitting in a magistrate’s courtroom in Moorabbin — which is about 10 miles south of Melbourne, Australia. Magistrate Rodney Crisp saw him blow a bubble and became so angry that he immediately accused Zukanovic of committing a deliberate and gross contempt in the face of the court. The magistrate then summarily convicted Zukanovic of contempt and sentenced him to 30 days in jail. Zukanovic was taken to jail from the courtroom to begin serving his sentence.

Mirza Zukanovic (AAP -JulianSmith)

After Zukanovic’s lawyer was able to have him released on bail after he was jailed for 12 hours, he filed an appeal of the contempt conviction. Zukanovic’s lawyer argued in the appeal, “I think the magistrate, in the vernacular, lost it,” by charging and finding Zukanovic guilty beyond a reasonable doubt without giving him the chance to consult with a lawyer, enter a plea, or present evidence in his defense.

Supreme Court Justice Jack Forrest announced the Court’s decision on April 20, 2011 that Zukanovic had been denied “procedural fairness” when the magistrate summarily charged, convicted and sentenced him of contempt. Justice Forrest said, “It is fundamental to the administration of justice that where a court’s authority is challenged the judicial officer can take steps, including the laying of a charge of contempt to preserve the authority of the court, firmness must be accompanied by fairness.” Since Zukanovic had been denied due process by not having the opportunity to seek legal advice on the charge, to plead guilty or not guilty, or call evidence in his own defense, his conviction was quashed.

By Hans Sherrer
Justice Denied

John Henry Browne lived up to his reputation as one of the most zealous defense lawyers in Washington state when a mistrial was declared on July 6, 2011 during a trial in Kitsap County as a result of his contentious sparing with the judge over what he claimed was the judge’s denial of his client’s constitutional rights to a fair trial.

John Henry Browne (www.jhblawyer.com)

Among Browne’s many successes during his four decade legal career was helping to exonerate some of the innocent people convicted in what became known nationally as the Wenatchee Sex Ring cases. In the mid-1990s forty-three innocent people were arrested for child rape and other charges that were fabricated by a detective with the Wenatchee, Washington Police Department.

Dominic Briceno was charged in 2009 with six drug related felonies in Kitsap County, and he hired Browne to represent him. Briceno’s trial began in June 2011. Superior Court Judge Theodore Spearman denied Browne’s pretrial motions and ruled in the prosecution’s favor on every significant evidentiary issue that arose during the trial. Browne expounded during many of his objections so the jury would understand why he was objecting. Judge Spearman countered by ordering Browne to only utter a single word when he objected — “Objection.” Spearman twice fined Browne $500 and threatened to jail him after finding him in contempt for violating his order to confine his objections to one word.

Browne repeatedly moved for a mistrial during the trial, and the tussle between Browne and Spearman came to a head on July 5, 2001 when Kitsap County deputy prosecutor Alexis Foster objected to Browne’s “ongoing speaking objections” in violation of the judge’s order. Spearman agreed with the prosecutor and fined Browne another $500. Browne then declared with the jury present that Judge Spearman was preventing him from effectively representing Briceno and that he no longer wanted “to participate in this trial.”

Spearman adjourned court for the day and told Browne to tell him the next day how he wanted to proceed. The following morning Browne filed a “memorandum regarding judicial conduct.” Browne’s memorandum asserted that Briceno’s constitutional rights were violated by Spearman’s rulings throughout the trial, and that the “court’s misapprehension and misapplication of the law — always in favor of the state — demonstrates the court’s incompetence to preside over (the) trial.” Browne also asserted that Spearman interfered with Briceno’s right to a fair trial by failing “to even consider the defense argument” and those decisions “thus call the court’s faithfulness to the law and professional competence into serious question.” The conclusion of Browne’s analysis of the case was to request that Spearman recuse himself in the interests of justice.

In court on the morning of July 6 Spearman refused to consider Browne’s memorandum and request for his recusal, and he indicated he was going to resume the trial. Browne countered by making a motion for a 10-day continuance that Spearman denied. Browne consulted with Briceno, after which Briceno told Spearman “he would like to fire his counsel.” Browne reiterated that he would was refusing to participate in the case, so agreeing to remove Browne as Briceno’s attorney seemed Spearman’s only option, because to continue the trial with Browne plainly doing nothing to assist Briceno would mean a virtually automatic reversal of Briceno’s conviction on appeal if he were convicted.

Spearman announced that he was inclined to declare a mistrial due to Browne “behaving improperly” and “obstructing justice.” Deputy prosecutor Foster suggested that Spearman should find Browne in contempt and jail him.

Spearman recessed court while he considered his options. During that recess a bailiff overheard a juror say that he would like to “punch that defense attorney in the nose.” After the comment was reported to Spearman, court was reconvened and he declared a mistrial on the basis that Browne’s conduct had “thwarted” the administration of justice and created “incurable prejudice” in the juror’s against his client.

Kitsap County Prosecutor Russ Hauge announced after Spearman’s ruling, “We have no issues with Judge Spearman’s performance.” He also said the prosecutor’s office will file a motion requesting that Browne be ordered to pay for the cost of retrying Briceno, since a retrial is only necessary because of Browne’s “intentional conduct.” Hauge defended Spearman, who has been a judge since 2004, describing him as “an extraordinarily well experienced lawyer.”

Browne said about Judge Spearman to a KOMO-TV reporter, “It became apparent to me that during the course of this trial that he has, in my opinion, some serious cognitive deficits. He told me he wouldn’t read briefs. I field briefs and ‘I’m not going to read that.’ He would rule on objections and say ‘sustained’ and then say ‘overruled’ for the same objection. It got really bizarre.” Browne said he will appeal the fines imposed by Judge Spearman and that he will file a complaint against him with the Washington State Commission on Judicial Conduct.

Browne was ordered by Spearman to return to Port Orchard on July 27 for a fact-finding hearing concerning Browne’s conduct during the trial. However, days before the hearing was scheduled to take place Spearman delayed it until after Briceno’s case was tried.

Browne, who has been described as “the most hated man in the state” of Washington for his defense of high profile clients, including Ted Bundy, says that it comes with the territory: People take their freedom for granted. They don’t teach civics anymore. They don’t realize how delicate the system is. It is a simple equation: The more power you give to government the less power you give to individuals.”

Dan Satterberg, then chief of staff for the King County Prosecutor’s Office, said of Browne, “He never seems to doubt the righteousness of his case. Other attorneys will allow themselves to have a casual aside with a prosecutor that he thinks his case is weak or his client is lying. But you won’t get any of that from John.”

John Henry Browne’s website is, http://www.jhblawyer.com

"Witch Hunt" by Kathryn Lyon

“Witch Hunt: A True Story of Social Hysteria and Abused Justice” by Kathryn Lyon (Avon books 1998) is the single best source of information about the Wenatchee Sex Ring cases. Used copies are available very reasonably on amazon.com’s website.

By Hans Sherrer
Justice Denied