Attorney's Contempt Charge Overturned on Appeal
|Genesee Circuit Judge Archie Hayman|
Local attorney Anthony Lubkin, who was not associated with Judge Hayman's case, was seated nearby; he uttered words like "guilty" and "not guilty" during his lunch conversation. The clerk that had the brilliant foresight to take the jury en mass, to the crowded lunch spot, recognized the lawyer and engaged him, requesting that he not speak with the members of the jury entrusted to his care.
Not the shirking violet, Lubkin is alleged to have stated: "What, I can't say the word 'guilty'? What if I say the word 'innocent'?" When Judge Hayman heard what had occurred at the diner, he conducted a criminal contempt hearing, characterized Lubkin as a "smart alec", and concluded that Attorney Lubkin:
...willfully and deliberately made a statement before this jury that could interfere with the functioning of the Court.Following the attorney's contempt conviction, the case went briefly and mildly viral among the law blogs, even getting some love from David Lat's Above the Law.
The Michigan Court of Appeals was not having it, however. In reversing Judge Hayman's contempt finding earlier this month, the appellate court held that Attorney Lubkin's First Amendment right to speak in a public place prevailed over the factually weak case handed to the county prosecutor by the circumstances of Judge Hayman's perhaps well-meaning, but errant court clerk.
Aside from the obvious lesson here about our cherished right to free speech in a public place, the more subtle lesson is for the law clerks out there. Clerks: no good deed goes unpunished. So, when you take charge of a jury, do not parade them around town but rather, keep the logistics simple.
Ordering carry-out would have been far less dramatic and would have got the job done nicely. In the case of this clerk, his boss certainly did not need the additional attention that his gaff caused.