Link to Mo. Sup. Ct. Opinion
Attorney Carl Smith petitioned the Missouri Court of Appeals, Southern District, to quash a subpoena for a grand jury in Douglas County, accusing the prosecuting attorney and judge overseeing the grand jury of conspiring to conceal misconduct. Mr. Smith argued that his words were constitutionally protected speech, but a jury found him guilty of criminal contempt, and the judge sentenced him to 120 days in jail. The Supreme Court of Missouri issued a writ of habeas corpus to review the conviction. Ultimately, the court found that both the evidence and jury instructions issued in Mr. Smith’s trial were insufficient and discharged his sentence.
I. Facts and Holding
On March 31, 2008, lawyer Carl Smith appeared before Associate Circuit Judge R. Craig Carter of Douglas County[2] on a motion to quash a subpoena issued by a grand jury overseen by Judge Carter.[3] Smith argued that not only did the subpoena improperly demand documents of communication between his legal secretary and client but also the handwriting on the subpoena was not the prosecutor’s.[4] Most notably, he contended that the calling of the grand jury was in retribution for [his client’s] filing of a motion to disqualify the prosecuting attorney in a [pending] criminal case.”[5]Judge Carter overruled the motion to quash and gave Smith one week to appeal his decision.[6] On April 3, 2008, Smith properly filed a petition for writ of prohibition with the Missouri Court of Appeals, attaching 178 pages of affidavits, depositions, and court filings that alleged criminal action by a plethora of lawyers, including the prosecuting attorney, Judge Moody and the Attorney General.[7]
Among the arguments listed in this writ, Smith included a number of inflammatory statements directed at Judge Carter and the prosecuting attorney.[8] Pronouncing Smith’s attachments “the most scurrilous, defamatory, venous attack on the Judicial System the Court has ever witnessed,” Judge Carter issued an order of contempt on April 16, 2008[9] – while the appellate court denied Smith’s writ outright – and assigned Judge Gary Witt to oversee the jury trial.[10]
During trial proceedings on August 5, 2009, Smith neither presented witnesses nor testified on his own behalf, relying instead on his attorney’s cross examination of Judge Carter.[11] The state, however, presented the inciting paragraphs of Smith’s writ and the testimony of Judge Carter who asserted “that the facts in the two paragraphs [were] false, . . . [not] proper ‘argument’ and that a writ petition was an improper avenue for an attorney who believes a judge has committed, or is committing, wrongdoing.”[12]
At the conclusion of the trial, Judge Witt provided instructions to the jury, asking the jurors to find Smith guilty of criminal contempt if they found beyond a reasonable doubt that: (1) Smith had filed a writ of prohibition against Judge Carter; (2) Judge Carter was indeed a judge in Douglas County; (3) Smith’s writ of prohibition stated that Judge Carter used a grand jury to “threaten, install fear and imprison innocent persons” and intimidate opposition; and (4) Smith’s statements “degraded and made impotent the authority of the Circuit Court of Douglas County.”[13]
As a result of these instructions, Smith was found guilty of criminal contempt and, in September 2009, Judge Witt sentenced Smith to 120 days in jail.[14] In October 2009, the Supreme Court of Missouri issued a stay of Smith’s incarceration pending its decision on Smith’s writ of habeas corpus.[15]
II. Legal Background
Missouri courts are imbued by the constitution with the power to punish individuals for contempt, both statutorily and at common law.[16] The punishment of contempt can be either civil or criminal, direct or indirect.[17] Indirect criminal contempt, at issue in the instant case, is punitive, intending to “protect, preserve, and vindicate the authority and dignity”[18] of the judiciary; however, unlike direct contempt that occurs in the presence of the court, indirect contempt “‘arises from an act outside the court that tends to degrade . . . the court or to impede or embarrass the administration of justice.”[19]In balancing private speech and the First Amendment, the United States Supreme Court has stated that “clear and present danger” is necessary to convict non-lawyers of criminal contempt.[20] The Missouri Court of Appeals has applied that standard, finding that a contempt conviction can only be sustained if the speech presents “a demonstrated impediment to the judicial process, real, threatened and imminent.”[21]
In this case, determining criminal contempt is complicated by the United States Supreme Court’s decision that a lawyer’s speech is also protected by the First Amendment.[22] The Supreme Court of Missouri further admits that “the law of indirect contempt as applied to lawyers is confusing and unclear both in this state and throughout the nation.”[23] Neither party in the case could put forth any Missouri case on point, nor could the court find guidance in past precedent.[24] Indeed, even Gentile v. State, the seminal case on lawyers’ speech, pertains to disciplinary actions under state ethics rules.[25]
Nevertheless, it is clear that Missouri “require[s] some knowledge of falsity or, at the very least, a reckless disregard for whether the false statement was true or false” in order to discipline an attorney for his words.[26] The Supreme Court of Missouri rationalized that this extra element was necessary in lawyers’ disciplinary cases because those “admitted to the bar ‘to protect the public and the administration of justice’” should be held to a higher standard.[27]
In the instant case, however, the court did not address the falsity element; instead, Judge Witt only required the jury to find that Smith’s statements “‘degraded and made impotent the authority of the Circuit Court . . . and impeded and embarrassed the administration of justice’” in order to find him guilty of criminal contempt.[28] As a result, the trial court’s instructions failed to adhere to the protections of the First Amendment.[29] To rectify the lower court’s transgression, the Supreme Court of Missouri elucidated three elements that an attorney must satisfy to be found guilty of indirect criminal contempt.[30] First, it must be shown that the lawyer’s statements were false; second, that “[t]he lawyer knew the statements were false or acted with reckless disregard for whether the statements were true or false;” and third, that the statements “constituted an actual or imminent impediment or threat to the administration of justice.”[31]
III. Comment
Smith v. Pace serves as a reminder to the Missouri courts that, in their efforts to preserve judicial reputation and solemnity, they must heed the speech protections of the First Amendment. Prior to the instant decision, Missouri had no set standard for convicting an attorney of indirect criminal contempt. Smith has set clear guidelines for punishing those attorneys that overstep the boundaries of legal respect and revere, while ensuring that those individuals retain their rights to free speech. Truly, very few protections exist for fabricated statements in any legal area, civil or criminal, and it only makes sense that the elements of contempt should conform to those standards. Requiring a finding of the statements’ falsity and that the lawyer knew of that falsity shores up the discretion of the courts in commanding attorneys to jail.
While the venerable element that contemptuous statements must “constitute[ ] an actual or imminent impediment or threat to the administration of justice”[32] is incredibly important, there should be – and now is – an additional element addressing the difference between true allegations that obstruct justice and slanderous statements that threaten the reputation of the court. Accurate statements of misconduct can be, of course, worrisome to courts, but an attorney should not be flatly denied from speaking the truth. On the other hand, false statements cannot and should not be tolerated – when they are proven to be false beyond a reasonable doubt.This is the lesson that the Supreme Court of Missouri teaches to courts.
-Brianna L Lennon
[1] No. SC90425 (Mo. May 11, 2010). The West reporter citation is 313 S.W.3d 134 (Mo. banc 2010).
[2] Judge Carter had been assigned to oversee the grand jury by circuit judge John Moody. Id. at *1; Brief of Respondent Honorable Gary Witt, at 12 (Jan. 20, 2010), Smith, 2010 WL 1930948 (No. SC90425).
[3] Smith, 2010 WL 1930948 at *1.
[4] Id. at n.1.
[5] Brief of Respondent Honorable Gary Witt at *12, Smith, 2010 WL 372162 (No. SC90425).
[6] Id. at *13.
[7] Id.
[8] Smith, 2010 WL 1930948 at *2. In part, Smith’s petition stated: "1. The attached exhibits reflect the personal interest, bias and purported criminal conduct of Respondent [Judge Carter], Prosecuting Attorney Christopher Wade, and others [sic] members in the judicial system in the Forty-Fourth Judicial Circuit. Their participating in the convening, overseeing, and handling the [sic] proceedings of this grand jury are, in the least, an appearance of impropriety and, at most, a conspiracy by these officers of the court to threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so. 2. When Relators [Smith's client and Smith's secretary] on March 31, 2008 asked Respondent [Judge Carter] and the prosecuting attorney who were the targets of this grand jury, Relators' assertion that the targets were Relators and their counsel [Smith] was met with tacit admission of silence. This grand jury, as in the last grand jury in Douglas County, is being used by those in power in the judicial system as a covert tool to threaten, intimidate and silence any opposition to their personal control-not the laudable common law and statutory purposes for which the grand jury system was created."
[9] Brief of Respondent Honorable Gary Witt at *11, *15.
[10] Smith, 2010 WL 1930948 at *2.
[11] Brief of Respondent Honorable Gary Witt at *11, *16. Smith focused his questioning on Rule 4-1.2(c), asking Judge Carter about “a lawyer's obligation to abide by his client’s decisions concerning the objectives of representation, and the issue of lawyers not having to ‘take on the moral, political viewpoints of their client.’” In addition, Smith “suggested that the Douglas County jury was being used to obtain evidence against [his client] for prosecution . . . .”
[12] Smith, 2010 WL 1930948 at *2.
[13] Id. at *3.
[14] Id.
[15] Id. at *6.
[16] Id. at *4. Mo. Rev. Stat. 476.110 “provides for a finding of contempt only where the actions being punished are committed in the court’s presence, the actions actually interrupt the court’s proceedings or a person disobeys an order of the court.” The Supreme Court has long held, however, that this statute does not limit the common law powers of state courts to find criminal contempt. Id.; See Osborne v. Purdome, 244 S.W.2d 1005, 1012 (Mo. banc. 1952). Supreme Court Rule 36.01 governs criminal contempt procedures, generally. Brief of Respondent Honorable Gary Witt, at *21.
[17] Smith, 2010 WL 1930948 at *4 (citing State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994)).
[18] Id.
[19] Id. (quoting State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994)).
[20] Id. at *5-6. See Bridges v. California, 314 U.S. 252, 263 (1941) (holding that the “clear and present danger” standard requires “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished”); Craig v. Harney, 331 U.S. 367, 377 (1947) (holding that an unfair criticism of a judge did not rise to the “clear and present danger” standard).
[21] McMilian v. Rennau, 619 S.W.2d 848, 853 (Mo. App. W.D. 1981).
[22] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1073 (1991).
[23] Smith, 2010 WL 1930948 at *5.
[24] Id.
[25] 501 U.S. 1030 (1991).
[26] Smith, 2010 WL 1930948 at *7. See also In re Westfall, 808 S.W.2d 829 (Mo. banc 1991); Rule 4-8.2(a).
[27] Smith, 2010 WL 1930948 at *7.
[28] Id.
[29] Id. The Supreme Court also found that no evidence, aside from Judge Carter’s testimony, could support a finding of falsity in Smith’s case. Id. at *8.
[30] Id. at *9.
[31] Id.
[32] Id.
