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Thursday, October 29, 2009

Masturbatory Gesture to Adversary Gets Texas Lawyer 90 Days for Contempt

Adam Reposa simulated masturbation in court

A young and up front Texas lawyer, who made a masturbatory gesture to a male prosecutor in front of a female judge after disregarding the jurist’s instruction to conduct himself more professionally was found guilty of direct criminal contempt and sentenced to 90 days in jail. Yesterday, an appellate court issued a detailed opinion upholding the sentence. It is available in the link below.

When Kayo Morgan was suspended for 91 days for bringing his monkey to court or telling a judge to go make love to one, I thought the penalties were ludicrous and harsh.

When Sean Conway stood up to Judge Aleman’s intransigent posture of setting cases too swiftly I thought his sanction for publishing words on the Internet was ludicrous. Essentially, I do believe that zealous advocacy requires the litigant to stand up to the court, though I think where you draw the fundamental distinction disciplinarily is whether the attacks are personal or professional.

The advocate has to make his point as a lawyer and not as a crybaby. It’s a simple standard. Are you attempting to advance the cause of your client or just making an ass out of yourself in a courtroom? Are you repeating and restating the same thing time after time after a court has entered its final ruling?

Once you make your record, there is always an appeal. But make your record, point out who the players and witnesses are, what the court is doing that is intolerable, and lay the appropriate legal foundation for a justifiable recusal. Muttering under your breath after the fact is not only not going to help an appellate court; it is more likely to get you held in contempt by the trial court.

In this Texas case, according to the Tex Parte Blog, which opined about the ruling, Reposa unsuccessfully tried to argue that since the gesture was aimed at the county attorney and not the judge- he should escape discipline of the court. So I guess Al Milian, you just can’t give the finger to your adversary, let alone punch him out in a hallway.

The appellate court ruled that Adam Reposa’s gesture was “a purposeful act of disrespect and an affront to the dignity of the court,” even if it wasn’t directed at the judge. As such, it was deemed contumacious conduct that rises to the level of criminal contempt.

Most judges are not used to dealing with contempt. They have problems dealing with it procedurally because in the midst of their anger at the actions of an irresponsible attorney, they inadvertently fail to follow the peculiarly unique guidelines for such a proceeding. There are specific rules to follow. We don't live in that day when Judge Futch could turn to a bailiff and say "just put the son of a bitch in jail.” No, there is an actual procedure, and this case thoughtfully lays it out. Worth a read. Here it is:

The case talks about the differences between civil and criminal contempt and goes into the specific behavior the court found offensive; what and which evidence was admissible; judicial recusal and more. My gut reaction was and still is that the sentence is disproportionate to the offense, but even that issue was thoughtfully addressed by the Texas Court of Appeals. Though I disagree with their conclusions, I will at least applaud their efforts to reason out an approach to a difficult issue. I think it is a decision worth putting aside and holding onto for future reference.

See also as long as it is online Judge Zloch's opinion on contempt:

1 comment:

  1. excellent piece norm, and what ever happened to your motion against Judge Levenson with the gypsies? Did you get him removed from the case? He went off the deep end that day.