Opinion
ROUSE, J. Petitioner, an attorney, seeks annulment of an order of direct contempt issued by the Municipal Court of Sonoma County at the conclusion of a criminal trial of a number of defendants, some of whom were represented by petitioner. The order adjudged petitioner in contempt and imposed a fine of $500 and a sentence of imprisonment for five days.
We summarily denied petitioner’s application for a writ of habeas corpus on January 3, 1972. On January 24, 1972, while a new petition was pending in the California Supreme Court, the United States Supreme Court decided In re Little, a per curiam opinion reported in 404 U.S. 553 [30 L.Ed.2d 708, 92 S.Ct. 659]. The Little case, along with In re Hallinan (1969) 71 Cal.2d 1179, 1182, 1183 [81 Cal.Rptr. 1, 459 P.2d 255], was cited by the California Supreme Court in its order to show cause before our court why the relief prayed for should not be granted.
Mindful of a special responsibility which rests heavily upon our shoulders [628]when called upon to examine the conduct of representatives of the bench and bar, in a judicial proceeding, we believe that a preliminary discussion and review of some basic concepts is in order.
There are, we suggest, certain areas of the trial arena in which a reviewing court must tread most cautiously. One of these involves the utilization of the physical senses in seeing and hearing what one does or says in the courtroom. This becomes an even more sensitive area when dealing with a case of alleged contempt. The cold transcript imparts information of little value concerning the appearance, general conduct and demeanor of the alleged transgressor. In the United States Supreme Court case of In re Little, supra, 404 U.S. 553, Mr. Chief Justice Burger pointed out that the propriety of such a holding depends “in a very special way on the setting, and such elusive factors as the tone of voice, the facial expressions, and the physical gestures of the contemnor; these cannot be dealt with except on full ventilation of the facts. Those present often have a totally different impression of the events from what would appear even in a faithful transcript of the record.”
The efficacy of a proper exercise of the contempt power is directly related to the timeliness of the order which adjudges the contemner. If the contempt proceeding is to be at all meaningful then it is imperative that inappropriate and offensive conduct be dealt with promptly at the time of the occurrence, so as to create, hopefully, a lasting impression of cause and effect.
On the other hand, it is equally important that the situation be dealt with in an atmosphere of calm and dispassion. Often the person most qualified to evaluate the severity of such conduct is a judge who is the subject of what may have been a personal and bitter attack. Thus is created the dilemma which has plagued reviewing courts for years. The United States Supreme Court recognized the problem in the case of Sacher v. United States (1951) 343 U.S. 1 [96 L.Ed. 717, 72 S.Ct. 451]: “If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.” (P. 11 [96 L.Ed. at p. 724].)
It has been suggested that a judge contemplating a summary contempt order might do well to declare a recess and, in the serenity of his chambers, reflect whether the conduct in question is truly so aggravated as to constitute contempt or whether his reaction to it is simply one of judicial nerves on edge. Rule F.3, subdivision (b), of the American Bar Association’s re[629]cently adopted Standards Relating to The Judge’s Role in Dealing with Trial Disruptions (A. B. A. Project on Standards for Criminal Justice, Tentative Draft (May 1971»,1 recommends that “The trial judge . . . consider the advisability of deferring adjudication of contempt for courtroom misconduct of a defendant, an attorney or a witness until after the trial, and . . . defer such a proceeding unless prompt punishment is imperative.” (P. 19.)
Even more difficult in this field of direct contempt is the situation which confronts a judge when the conduct involves a lawyer’s behavior in the course of trial. A reading of many appellate decisions dealing with this delicate subject discloses the existence of a very fuzzy area between the proper zeal of aggressive and effective advocacy and improper contumacy amounting to aggravated misconduct. So zealously have reviewing courts sought to preserve the right of the trial advocate’s independence in pursuing his cause on behalf of a client that some attorneys have mistakenly concluded that rudeness and discourtesy in the judicial proceeding are accepted methods to be employed by the successful practitioner. While recognizing that an attorney has the duty to protect the interests of his client, that he has the right to press legitimate argument and to protest an erroneous ruling, and that an attorney may assert that which he believes to be correct in a forthright manner, if he acted in the due course of a judicial proceeding, our Supreme Court went on to caution that “We do not mean to suggest . . . that it is impossible for an attorney to subject a judge to ridicule and insult by intonations and gestures accompanying words wholly innocuous, or that, in such event, the judge is powerless to protect the dignity of the court.” (Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 796 [192 P.2d 905]; In re Hallinan, supra, 71 Cal.2d at p. 1183.)
Members of the bar have the right to expect and demand courteous treatment by judges and court attaches; similarly, the court has the right to expect and demand that, in the course of judicial proceedings, advocates will conduct themselves in a courteous,' professional manner.
Section 6068 of the Business and Professions Code, in setting forth the obligations of an attorney in this state, provides, in part, that “It is the duty of an attorney: ... (b) To maintain the respect due to the courts of justice and judicial officers. ... (f) To abstain from all offensive personality
Subdivision 3 of section 1209, Code of Civil Procedure, describes the following as “contempts of the authority of the court: ... 3. Misbehavior [630]in office, or other wilful neglect or violation of duty by an attorney, . . (Italics ours.)
We note that rule D.l of the ABA Standards provides, in part, that “The trial judge should require attorneys to respect their obligations as officers of the court” (p. 13), and that rule A. 2 provides, in part, that “The trial judge has the obligation to use his judicial power to prevent distractions from and disruptions of the trial” (p. 5).
In passing, we conclude that incidents involving unprofessional conduct on the part of some advocates in recent criminal trials have not gone unnoticed by our Chief Justice, Warren Burger, who, during an address given at the 1971 American Bar Association Convention, remarked that “To discharge properly the heavy responsibilities placed on the contending advocates in criminal cases, it is essential that they should possess sound legal education, basic training and skills in advocacy and substantial instruction in professional behavior, and that they be aware of penalties for departures from professional norms. . . . Observance of proper standards aids rather than hinders the accused because it provides him with an advocate who is trusted by the other key participants and yet does not in the slightest impede courageous, zealous and skillful advocacy.” (Chief Justice Warren Burger, July 16, 1971, 94th Annual Meeting, A. B. A.; italics added.)
Summarizing the recitations in the order, it appears that petitioner was found in contempt for three instances of misconduct: (1) after having been admonished by the court to refrain, petitioner continued to argue after an objection by the prosecution had been sustained; (2) petitioner accused the court of favoring the prosecution in rulings on the admissibility of evidence; and (3) petitioner falsely accused the court of calling him (petitioner) a liar. The order recites that statements on which the second and third instances of misconduct were based were made in a “loud, disorderly, contemptuous, insolent and rude manner and tone of voice. . . .”
Language used by the trial court in its order follows that of Code of Civil Procedure, section 1209, which reads as follows: “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: 1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.”
The conduct found contemptuous occurred in the immediate view and presence of the court during a jury trial in which petitioner was counsel for a number of defendants.
The power of the court to punish summarily for a direct contempt is con[631]tained in Code of Civil Procedure, section 1211, which provides: “When a contempt is committed in the immediate view and presence of the court, . . . it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.” (Italics added.)
“[A]ll that is required is that an order be made reciting the facts constituting the contempt, adjudging the person guilty, and prescribing the punishment.” (In re Karpf (1970) 10 Cal.App.3d 355, 364 [88 Cal.Rptr. 895]; In re Hallinan, supra, 71 Cal.2d at p. 1180.)
The order, which recites facts pertinent to acts committed in the immediate view and presence of the court during the course of a trial, establishes the jurisdiction of the court to issue the order. Jurisdiction having been established, our responsibility on review of a contempt order “is merely to ascertain whether there was sufficient evidence before the trial court to sustain its judgment and order.” (Arthur v. Superior Court (1965) 62 Cal.2d 404, 409 [42 Cal.Rptr. 441, 398 P.2d 777].) The power to weigh the evidence rests with the trial court. (Bridges v. Superior Court (1939) 14 Cal.2d 464, 485 [94 P.2d 983] (revd. on other grounds, Bridges v. California (1941) 314 U.S. 252 [86 L.Ed. 192, 62 S.Ct. 190, 159 A.L.R. 1346]).)
Was the trial judge so “personally embroiled” with petitioner as to make the judge unfit to sit in judgment on the contempt charge?
Although Code of Civil Procedure, section 1211, permits summary punishment for direct contempt, the term “summary” refers to the character of the contempt proceeding, not its timing, does not demand instant punishment, and the practice of deferring the contempt adjudication of an attorney and the imposition of punishment until the end of the trial has been uniformly approved. (People v. Fusaro (1971) 18 Cal.App.3d 877, 888-889 [96 Cal.Rptr. 368];2 Sacher v. United States, supra, 343 U.S. at pp. 9-10 [96 L.Ed. at pp. 723-724]; Mayberry v. Pennsylvania (1971) 400 U.S. 455 [27 L.Ed.2d 532, 91 S.Ct. 499];3 rule F.3, subd. (b), ABA Standards, supra, p. 19.)
[632]However, in Mayberry v. Pennsylvania, supra, the principle emerged that a judge may become so “personally embroiled” with a lawyer in the trial as to make him unfit to sit in judgment on the contempt charge. (P. 465 [27 L.Ed.2d at p. 540].) Rule F.5 of the ABA Standards suggests that “The judge before whom courtroom misconduct occurs may impose appropriate sanctions, including punishment for contempt, but should refer the matter to another judge if his conduct was so integrated with the contempt that he contributed to it or was otherwise involved, or his objectivity can reasonably be questioned.” (P. 21.)
In the instant case, although petitioner was held in contempt on November 19, 1971, the order adjudging petitioner in contempt and imposing his sentence was not issued until November 23, 1971, after the jury had returned its verdict and had been excused.
Petitioner contends that the judge in the instant case was “personally embroiled,” within the meaning of the Mayberry case, and that he was therefore entitled to have his contempt hearing before a different judge. A similar contention was made in Weiss v. Burr (D.Ariz. 1971) 327 F.Supp. 1306, 1309, where the court disposed of the argument as follows: “Petitioner relies on Mayberry to support his contention that due process was violated in that he was denied an unbiased judge. His reliance is misplaced. Mayberry holds that a judge who has been addressed with ‘fighting words’ such as ‘dirty tyrannical old dog’ and ‘dirty sonofabitch’ should not give himself the opportunity to give vent to personal spleen in a judgment of contempt at the end of a trial. Mayberry distinguished the kind of case at issue here: ‘It is of course not every attack on a judge that disqualifies him from sitting. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921,[4] we ruled that a lawyer’s challenge, though “disruptive, recalcitrant, and disagreeable commentary,” was still not “an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.” ’ 91 S.Ct. at page 505.”
We observe that the judge in Ungar v. Sarafite, supra, 376 U.S. 575, was much more “personally embroiled” with the offending attorney (see colloquy on p. 585, fn. 7 [11 L.Ed.2d at p. 929]). Also, the words used by petitioner in the instant case were not “fighting words” of the character employed in Mayberry. We conclude that the judge was not unfit to sit in [633]judgment on the contempt charge and petitioner was not entitled, to a hearing before another judge. (Ungar v. Sarafite, supra, p. 584 [11 L.Ed.2d at p. 928]; Mayberry v. Pennsylvania, supra, 400 U.S. at pp. 465-466 [27 L.Ed.2d at pp. 540-541]; Weiss v. Burr, supra, 327 F.Supp. at p. 1309.)5
Is the order adjudging petitioner in contempt void in that it does not sufficiently recite the facts constituting contempt as required by Code of Civil Procedure, section 1211?
Petitioner argues that the order, as worded, does not meet the test set forth in In re Hallinan, supra, 71 Cal.2d 1179, that “An order adjudging a person in direct contempt of court must recite in detail the facts constituting the alleged transgression rather than the bare conclusions of the trial judge.” (Italics added.)
The wording upon which petitioner relies appears in In re Hallinan, supra, at p. 1182. It is, however, a quote from the earlier Gallagher v. Municipal Court opinion (supra, 31 Cal.2d at p. 795). Code of Civil Procedure, section 1211, does not contain the words “in detail,” and our conclusion is that although it may be better practice for the trial court to set forth the exact words used, we do not believe it is mandatory that that court do so. The order, as worded, states the facts “with sufficient particularity to show, without the aid of speculation, that a contempt actually occurred.” (Chula v. Superior Court (1962) 57 Cal.2d 199, 203 [18 Cal.Rptr. 507, 368 P.2d 107, 97 A.L.R.2d 421].)
“Contempt committed in the.immediate view and presence of the court, known as direct contempt, may be treated summarily. All that is required is that an order be made reciting the facts, adjudging the person guilty, and prescribing the punishment.” (In re Hallinan, supra, 11 Cal.2d at p. 1180; italics added.)
We shall hereafter examine the record with respect to each instance of conduct found to be contemptuous to see if the evidence supports the finding of contempt in light of the cases cited to us by the California Supreme Court.
[634] Does the evidence show that a contempt was committed as to:
(a) The first instance of conduct found to be contemptuous?
The first instance of conduct found to be contemptuous arose out of an exchange that took place on redirect examination,, when the prosecutor objected to a question put to a witness by the petitioner. The order adjudging petitioner in contempt sets forth these preliminary facts and then recites the first instance of conduct found to be contemptuous as follows: “After having been repeatedly instructed and admonished by the Court to refrain from such activity and comment, [petitioner] continued to argue after the above-mentioned ruling of the Court [that the objection was sustained] had been made and announced.”
We have examined the record and find that no ruling on the objection was ever made.6 7Thus, the evidence does not support the finding that petitioner “continued to argue after the above-mentioned ruling . . . had been made and announced.” In addition, the record shows that after petitioner had been admonished, he asked permission to* reply to* the stated objection.
“An attorney has the duty to protect the interests of his client. He has a right to* press legitimate argument and to protest an erroneous ruling.[7] . . . [A]n attorney may assert that which he believes to be correct in a forthright manner, if he is acting in the due course of a judicial proceeding. [Citation.]” (Gallagher v. Municipal Court, supra, 31 Cal.2d at p. 796; In re Hallinan, supra, 71 Cal.2d at p. 1183.)
We conclude that the evidence does not support the order with respect to the first instance of conduct found to be contemptuous.
(b) The second instance of conduct found to be contemptuous?
The second instance of conduct found to be contemptuous is stated in the order as follows: “In a loud, disorderly, contemptuous, insolent and rude manner and tone of voice, and in the presence of the jury, accused the Court of exercising different standards of judgment in favor of the prose[635]cution and against the defense in determining the admissibility of proffered evidence.”
The offending words were: “unless there’s a different rule for him than for me.”8
In In re Little, supra, 404 U.S. 553, cited to* us by the California Supreme Court in the order to show cause, a defendant arguing his own case made statements in summation that the court was biased and prejudged the case and that he was a political prisoner. The North Carolina court, on the basis of a statute similar to our Code of Civil Procedure, section 1209,9 adjudged him in contempt for these statements, wording its order as follows: “ ‘The Court concludes on the foregoing facts that the conduct of the [petitioner] and the words spoken by him in the presence of the Court were contemptuous, that they reflected on the integrity of the Court and tended to subvert and prevent justice.’ ”
The United States Supreme Court reversed the judgment. Its holding was as follows: “We hold that in the context of this case petitioner’si statements in summation did not constitute criminal contempt. The court’s denial of the continuance forced petitioner to argue his own cause. He was therefore clearly entitled to, as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client’s cause. In re Mc[636]Connell, 370 U.S. 230 (1962). There is no indication, and the State does not argue, that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, ‘The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil .... [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.’ Craig v. Harney, 331 U.S. 367, 376 (1947). ‘Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’ Brown v. United States, 356 U.S. 148, 153 (1958).
“The reversal of this conviction is necessarily required under our holding in Holt v. Virginia, 381 U.S. 131 (1965). There attorneys filed motions that the trial court recuse himself and for a change of venue, alleging that the judge was biased. The motion for change of venue alleged that the judge intimidated and harassed the attorneys’ client. The court adjudged the attorneys in contempt for filing these motions. We reversed for reasons also applicable here:
“ ‘It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rests on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holliday because of alleged bias on his part.’ Id., at page 136.” (In re Little, supra, 404 U.S. 553, 555-556 [30 L.Ed.2d 708, 710-711]; italics added.)
Because of the obvious significance of the Little opinion, we have also examined the cases cited in Little upon which the court relied in arriving at its conclusion:
(1) In re McConnell (1962) 370 U.S. 230, 236 [8 L.Ed.2d 434, 438, 82 S.Ct. 1288]. The court held that “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.”10 (Italics added.)
[637](2) In Holt v. Virginia (1965) 381 U.S. 131 [14 L.Ed.2d 290, 85 S.Ct. 1375], the principal case upon which the Little court relied, attorney Dawley, when ordered to show cause why he should not be held in contempt for refusing to answer questions, filed a motion to disqualify the judge, which was denied. He then filed a motion for change of venue, and attorney Holt, representing him on the motion, read to the court the motion as part of his argument urging a change of venue. The motion charged, the court with “in effect and/or in fact acting as police officer, chief prosecution witness, adverse witness for the defense, grand jury, chief prosecutor and judge.” (P. 133 [14 L.Ed.2d at p. 292].) The Virginia Supreme Court of Appeals affirmed a judgment of contempt against both lawyers, holding that the language used, in the motion violated Virginia Code Annotated, section 18.1-292 (1960 Repl. Vol.), which authorizes summary punishment of a person who misbehaves in the presence of the court so as to obstruct justice, or who uses “ ‘[v]ile, contemptuous or insulting language’ ” to or about a judge in respect of his official acts (p. 135 [14 L.Ed.2d at p. 293]). The United States Supreme Court reversed, stating that “neither Dawley nor his counsel could consistently with due process be convicted for contempt for filing these motions unless it might be thought that there is something about the language used which would justify the conviction.
“As previously stated, the words used in the motions were plain English, in no way offensive in themselves, and wholly appropriate to charge . . . bias of the presiding judge.” (Holt v. Virginia, supra, pp. 136-137 [14 L.Ed.2d at p. 294]; italics added.)
Thus, under the Little case, a charge of bias (which, we have here) made in plain English (“unless there’s a different rule for him than for me”) cannot be the basis of a contempt charge unless it (a) was uttered in a loud and boisterous tone, or (b) actually disrupted the court proceedings. (In re Little, supra, 404 U.S. 553.)
The order states that “said act and words were grossly contemptuous of the orderly process and dignity of the Court, and tended to and did, interrupt the due course of the trial.”11 It is apparent from, the record in this case that petitioner did not heed the court’s admonition but chose instead [638]to- persist in a course of conduct which did disrupt the judicial proceedings to the extent that the judge found it necessary to recess the trial and hold a further hearing with petitioner concerning his conduct. Immediately after the occurrence of the third instance of conduct found to be contemptuous, the trial was recessed for the day at 3:50 p.m. and counsel were directed to remain, at which time the judge and petitioner had further discussion regarding the conduct in question. It was after this discussion that the judge announced his decision to hold petitioner in contempt and to take the matter up at the conclusion of the trial. Certainly, the argument of the Attorney General that the court’s action in recessing the proceedings at that time was proof of an interruption of the court proceedings and his observation that petitioner so upset the judicial process that the judge failed to rule upon the objection in question is most persuasive on this point.
The order does recite that the statement constituting the second instance of conduct found to be contemptuous was made in a “loud, disorderly, contemptuous, insolent and rude manner and tone of voice,” meeting the first requirement of Little. California law requires a warning in instances of contempt based on tone of voice or manner.12 The record here shows that the court had warned petitioner about continuing to interrupt “in such a fashion” when an objection was being stated.13 (Italics added.) Although the text of 'that admonition does not make precise reference to a “loud” or “boisterous” tone of voice, it certainly refers to counsel’s disorderly manner.
We conclude that the trial court’s order adjudging petitioner in contempt as to the second instance complies with the requirements of Little and Hallinan, and accordingly must be upheld.
(c) The third instance of conduct found to be contemptuous?
The third instance of conduct found to be contemptuous is stated in the order as follows: “In a loud, disorderly, contemptuous, insolent and rude manner and tone of voice, and in the presence of the jury, falsely accused the Court of calling him a liar.”
The record shows the offending words to be: “The Court: Mr. Gross-man, you know better than that. Mr. Grossman: I don’t know better than [639]that. So don’t say I know better than that. The Court: Mr. Grossman— Mr. Grossman: I say what I believe. Don’t say I know better than that. You’re saying I’m a liar. I’m not a liar, Judge. Don’t say I know better than that.” (Italics added.)
A judge of a court is well within his rights in protecting his own reputation from groundless attacks upon his judicial integrity. (In re Friday (1934) 138 Cal.App. 660, 663 [32 P.2d 1117].) “That counsel may have proceeded out of an excess of zeal . . . does not justify making scandalous charges against the judge.” (Mosk, J., Direct Contempt (1956) 31 State Bar J. 510, 517.)
It is noted that the court in the instant case did not rest the third instance of misconduct on the false accusation alone. The order states that the false accusation was made “In a loud, disorderly, contemptuous, insolent and rude manner and tone of voice . . . .”
Our interpretation of Haltinan is. that a warning is required “When the contempt order is based on statements of an attorney made in open court the language of which is in itself not insolent, contemptuous or disorderly. . . .” (In re Hallinan, supra, 71 Cal.2d at p. 1181; italics added.) We must then determine whether the language used in the instant case meets that test.
We conclude that the record does not support the accusation made against the judge in this instance and that such accusation was rude and insolent; further, that the language, when considered in context with the balance of counsel’s, statement,14 was on its face contemptuous and, thus no warning was required.
The record here discloses that the attorney who' was the subject of this order has been in practice for 35 years. We can readily distinguish a situation which involves a trial practitioner with that amount of experience from that of a lay person appearing in propria persona or one who has had little experience as a lawyer. Surely, counsel well knew that there were many ways with which to deal with a troublesome ruling other than by a personal assault upon the judge. Certainly the rebuking and untruthful accusation that “You’re saying I’m a liar” could only have the effect of demeaning the entire judicial process in the eyes of the jurors and others there present.
The order is annulled with respect to the first instance, and affirmed as to the second and third instances, of conduct found to be contemptuous. [640]The matter is remanded to the municipal court for reconsideration of the punishment in light of this decision.
Taylor, P. J., concurred.
All subsequent references to this publication are designated “ABA Standards.”
In People v. Fusaro, supra, which the court noted was the first reported instance where a California judge saw fit to imprison an accused person’s defense lawyer in midtrial (p. 888), the court concluded that “Unless demanded by overwhelming circumstances, the court-imposed delay caused by jailing the defense lawyer in midtrial is inherently wrong, damaging to the defendant’s right to a speedy trial and antithetical to the public interest in speedy, economical justice.” (P. 890.)
In Groppi v. Leslie (1972) 404 U.S. 496 [30 L.Ed.2d 632, 92 S.Ct. 582], however, the court reversed a contempt order issued by a legislative body two days after the event, in the absence of the contemner, a layman, and without notice to him.
The words used by the lawyer in the Ungar case, while he was on the witness stand, were as follows: “I am absolutely unfit to testify because of your Honor’s attitude and conduct towards me. I am being coerced and intimidated and badgered. The Court is suppressing the evidence.” (Ungar v. Sarafite (1964) 376 U.S. 575, 580, see also p. 584 [11 L.Ed.2d 921, 926, 928, 84 S.Ct. 841].)
In In re Little, supra, 404 U.S. 553, following the contempt adjudication, the defendant called the judge a “M- F-.” Mr. Chief Justice Burger and Mr. Justice Rehnquist, in a concurring opinion, suggested that Little be summoned before the court and “observing the strictures of Mayberry . . .” show cause why he should not be held in contempt for the conduct and utterances following the contempt adjudication (italics added). We know, at least, that the use of these words will constitute a contempt and also entitle the contemner to a hearing before another judge.
The Attorney General concedes that “the record does not disclose that a ruling was ever made on his objection . . . .” He then goes on to say that “petitioner so upset the judicial process, that [the judge] did not rule on the objection in question.”
Evidence Code, section 774, provides: “A witness once examined cannot be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court’s discretion.” (Italics added.) Although no ruling on the objection was made, we do know that the court intended to sustain the objection, for the order adjudging petitioner in contempt stated that the court did in fact sustain the objection.
“Mr. Grossman: The question that he asked was, ‘So you go around the country occupying.’ All right. Doesn’t he open the question of whether he does go around the country occupying? So I want to ask him about a place that he did occupy. The Court: What has that to do with the issues in this case? Mr. Grossman Well, then, why did he ask it? I’ve said it before: If he’s willing to open up an irrelevant field, then I’m entitled to redirect or on cross to go into the same field, unless there’s a different rule for him than for me. The Court: Mr. Grossman, you know better than that. Mr. Grossman: I don’t know better than that. So don’t say I know better than that. The Court: Mr. Grossman—Mr. Grossman: I say what I believe. Don’t say I know better than that. You’re saying I’m a liar. I’m not a liar, Judge. Don’t say I know better than that. The Court: I cite that as misconduct, Mr. Gross-man. Mr. Grossman: What? That I said you call me a liar? The Court: Is misconduct. Your whole line of conduct, Mr. Grossman. I think at this time it might be a good place to take our afternoon recess. I think counsel and the Court will have some conversation to engage in which should more properly be done outside the presence of the ladies and gentlemen of the jury. Now, we’ll take our recess at this time until 10:00 o’clock on Monday morning. Once again, while we’re disbanded, once again let me remind you of my admonition about discussing the case or forming or expressing any opinions. I expect counsel to remain.”
The statute involved in the Little case differed from ours in this respect: The wording of our Code of Civil Procedure, section 1209, is “tending to interrupt 'the due course of a trial,” (italics added), whereas section 5-1(1) of the North Carolina statutes, makes punishable for contempt “ ‘Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.’ ” (In re Little, supra; italics added.)
18 United States Code Annotated section 401, the statute under which McConnell was convicted, provides that the court shall have power to punish such contempt of its authority as “Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; . .
In Little, the United States Supreme Court noted that the district court’s conclusion that the statements “ ‘reflected on the integrity of the Court and tended to subvert and prevent justice’ ” amounted to a finding by the district court that the words were wilful and intentionally used and that the words used “ ‘tended to interrupt the Court’s proceedings and to impair the respect due its authority.’ ” It then noted that the state did not argue and there was no indication that the statements “in any wise actually disrupted the court proceeding.” (Italics added.)
In re Hallinan, supra, 71 Cal.2d at page 1185; Gallagher v. Municipal Court, supra, 31 Cal.2d at pages 796-797.
“The Court: Not when an objection is being stated, Mr. Grossman. You know better than that. If you continue to interrupt in such a fashion, not only will your record be so fouled up that it will never be undone, but I will take more firm steps to see that it doesn’t recur. I think I make myself clear, do I not? Mr. Grossman: I suppose so.” (Italics added.)
Note: Webster defines “fashion” as being synonymous with the word “manner.” (Webster’s New Collegiate Dict. (7th ed. 1971).)
“Mr. Grossman: I say what I believe. Don’t say I know better than that. You’re saying I’m a liar. I’m not a liar, Judge. Don’t say I know better than that.” (Italics added.)