McMillian v. Superior Court

Opinion

BROWN (Gerald), P. J. In these consolidated proceedings, petitioner Robert E. McMillian, an attorney, seeks to annul two orders of the San Diego County Superior Court each adjudging him in direct contempt of court, and each sentencing him to jail for five days and imposing a fine of $500.1

The alleged contempts occurred in open court during the jury trial of a criminal case in which petitioner represented the defendant, Oberreuter. A codefendant had separate counsel. We said in our opinion on appeal affirming the judgments, “The record here reflects contentiousness, argumentativeness, overzealousness on both sides of the counsel table. The judge on occasion became a participant.” (People v. Oberreuter, 4 Crim. No. 8819, filed June 27, 1979, unpublished.)

Background

The trial began on October 19, 1977. On October 25 the court admonished Oberreuter for being late in returning from the noon recess at 1:33 p.m. instead of 1:30, although the court had previously convened at 1:33 on the 19th, 1:34 on the 20th and 1:38 on the 24th. The court had said on the 19th, the first day of trial, when counsel wanted to recess until [6112] p.m., “No, we run just like a ship: 1:30 the ship sails.” Later in the afternoon of the 25 th the court found Oberreuter in contempt for disregarding the court’s previous admonishment to cease his facial and physical expressions while witnesses testified. After Oberreuter spent the night in jail for the contempt, McMillian requested his client be allowed to shave; the request was denied because the judge was “ready to proceed” although McMillian had asked to speak with the judge 10 minutes before the court convened in order to make the request. McMillian then moved for a mistrial which was abruptly denied without McMillian being allowed to give his reasons. When McMillian was allowed to explain his reasons for the motion, the judge said, “You are not making sense.” McMillian thought the judge had made up his mind about Oberreuter’s guilt and was influenced in his rulings by this belief. The judge responded he could very well hold McMillian in contempt for that “accusation.” In the alternative McMillian then requested the judge to disqualify himself because of his prejudice against Oberreuter. The judge denied the motion, adding, “Sit down.”

Contempt I (4 Civ. 16990)

The first alleged contempt occurred on October 27, the last trial day of the week. Without precise notice to McMillian, the prosecution suddenly rested at 2:15 p.m., after using five days to present its case. McMillian had no witnesses present except the defendant whom he expected to put on the stand. The court was aware McMillian intended to call defendant as a witness. The court ordered him to proceed, to put the defendant on the stand. McMillian said he was not ready, he wanted to talk more with his client. His request for a continuance was denied. The court insisted he proceed and found him in contempt for not proceeding.