Even the most even-tempered judge knows. Sometimes the lawyers in your courtroom are just going to yank your chain.
But a judge can be too quick to pull the trigger on a summary contempt citation under Va. Code § 18.2-456, as the Court of Appeals points out in Scialdone v. Commonwealth, decided yesterday.
In a 2-1 decision, the appellate court reversed summary contempt, including jail terms, for two Virginia Beach lawyers and their law clerk. The lawyers, Claude Scialdone and Barry Taylor, were defending their client Frankie Dulyea on criminal charges stemming from online conversations in 2005 with an undercover cop pretending to be a pubescent girl. Virginia Beach Circuit Judge Patricia West ordered the lawyers to jail for offering into evidence an altered document purporting to show Internet chat-room rules at the time of Dulyea’s chats.
Then there was the matter of the law clerk’s screen name – westisanazi – that appeared on a document the lawyers brought to court.
West relied on the contempt statute, but Judge Larry Elder said in a 44-page opinion that West violated the appellants’ due process rights when she haled both partners, the clerk and a secretary into court to give sworn testimony about how the document came to be printed and brought to court. The judge even sent a court deputy back to the firm to watch the legal secretary as she attempted to duplicate her efforts to print out the document.
The appellate panel majority said the lawyers and law clerk should have had a chance to defend themselves. Quoting a 1958 U.S. Supreme Court opinion, Brown v. U.S., Elder said trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.
Here’s more follow-up: While serving a three-year sentence for using the Internet to try and entice a minor to perform in sexually explicit material, Frankie Dulyea was acquitted last year of charges that he solicited someone to kill Judge West. On Sept. 11, 2007, the VSB suspended Scialdone’s law license on impairment grounds.