The full Virginia Court of Appeals split sharply today on the precision required to preserve for appeal challenges to summary contempt convictions.
The result is that two attorneys and an assistant who was a third-year law student at the time may well be on their way to the slammer for 10 days.
Virginia Beach Circuit Judge Patricia L. West’s contempt citation stemmed from her belief that attorney Claude M. Scialdone, his partner Barry R. Taylor and Edward S. Jones, the law student, intentionally altered a document they intended to present to a jury.
Scialdone was trying to get into evidence a copy of the rules for an Internet chat room, and West found that he changed the date on the rules to make them relevant for his client’s defense.
Once she suspected something was amiss, West summoned Taylor and a secretary to the courtroom and questioned the secretary and Scialdone out of the presence of Taylor and Jones.
When West cited them for summary contempt in open court and imposed the 10-day jail sentences, the defendants did not contend immediately that the nature of the proceedings excluded the possibility of a summary contempt finding.
However, they argued in motions for bail and for a stay of the execution of the sentence that much of the allegedly contemptuous conduct did not occur in West’s presence, so that they were entitled to the procedural protections required for a plenary contempt citation.
That was enough to preserve the issue for Judge Larry G. Elder, who wrote for Chief Judge Walter S. Felton Jr. and Senior Judge Jean Harrison Clements. They would have remanded the case for trial of Scialdone and Taylor for plenary contempt and dismissed the citation against Jones because the evidence against him was insufficient.
But Judge D. Arthur Kelsey, writing for four other judges in Scialdone v. Commonwealth, said, “Except in the most egregious circumstances, a litigant cannot argue on appeal that the trial court erroneously denied him relief which he never specifically asked for in the trial court.”
Judge Randolph A. Beales was the man in the middle. He found the evidence sufficient to justify the contempt holding for Scialdone based on his actions in West’s presence. But he concluded that Taylor and Jones could be convicted of contempt only with the protections of a plenary proceeding.
Judges Robert J. Humphreys and Elizabeth A. McClanahan did not participate in the case.
By Alan Cooper