Being a “Smart Aleck” Does Not Form the Basis for Contempt and the First Amendment May Impose Limits on Criminal Contempt Convictions | Speaker Law
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Being a “Smart Aleck” Does Not Form the Basis for Contempt and the First Amendment May Impose Limits on Criminal Contempt Convictions

Posted on Monday, May 14, 2018

On February 6, 2014, the Michigan Court of Appeals issued People v Lubkin (Case No. 310359), an unpublished decision vacating a trial court’s conviction of Attorney Lubkin for criminal contempt. In accordance with prior plans, on April 12, 2012, Attorney Lubkin and a client had lunch at a restaurant. At this same time an empaneled jury on a criminal case entered the restaurant accompanied by a judicial advisory assistant, MacMillan. Attorney Lubkin was not involved in any way in the case. While the jury was entering, MacMillan testified that he heard Attorney Lubkin say the word “guilty” at which time he asked the attorney not to talk to the jury. MacMillan testified that Attorney Lubkin responded, “What I can’t say the word guilty? What if I say the word innocent?” Attorney Lubkin and his client then joined other companions and had a brief conversation that involved use of the words “guilty,” “not-guilty,” and “innocent.” MacMillan could hear these words. The client of Attorney Lubkin’s testified that the legal conversation was in regards to a personal matter. The Trial Court convicted Attorney Lubkin for criminal contempt for these actions. The court held that the attorney “willfully and deliberately made a statement before this jury that could interfere with the functioning of the Court.” Under Michigan law, a conviction for criminal contempt requires that the prosecution prove beyond a reasonable doubt that the defendant willfully disregarded or disobeyed the authority or orders of the court. The Court of Appeals noted that wilful in the context of criminal cases requires “evil intent.” The Court of Appeals found that the prosecution did not prove beyond a reasonable doubt that Attorney Lubkin acted willfully. The Court of Appeals specifically noted that the Trial Court’s claim that Attorney Lubkin is a “smark aleck” is not proof that he, an experienced attorney, was acting willfully to disregard the court. Further, Attorney Lubkin and his companions had plans to meet at the restaurant and he had no reason to know the jury was empaneled for a criminal case. In addition, the court noted that Attorney Lubkin’s conduct was consistent with having a conversation with his companions. For example, his alleged actions of looking toward the jury was explained by him and his client as looking at a television behind the jury.  Though the Court of Appeals did not base its opinion on the issue, interestingly, the court discussed that it was not convinced that saying the word “guilty,” even if intentionally said in the presence of the jurors, rose to the level of criminal contempt. The court noted that there are “First Amendment concerns with finding an individual in contempt for making a comment in a public area.” The court noted that normally manner restrictions on speech in public, but not content restrictions, are lawful. However, the court did not address the issue fully because of its finding that the defendant did not act wilfully. I wonder if, the jury having heard the stray comments by Attorney Lubkin in the restaurant, the defendant could have filed a motion for mistrial of the criminal case because of jury taint?

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