Contempt, D Notices, Lindt Cafe, and Parental Alienation

by Mary W Maxwell, LLB

What is Contempt of Court?

The judge – who is also known as “the Court” – owns the shop. She and she alone determines how far you can go in language and in behavior inside the shop.  And sometimes outside the shop. She can write orders which, if it were a king or president, might be called tyrannical.

You can’t appeal this to another judge.  Today I read, in an article at TheHill.com, that the Chief Justice of the United States, John Roberts, has intervened in regard to a court order made by a lower court.

I am very interested in that, as I’d never seen a higher court reach down.  I know they do it all the time by phone call, or osmosis, but this interference was official and public.

It is said to be related to the Mueller probe.  Somebody “from a foreign country” was being charged a $5000 per week fine by the lower court for not furnishing demanded information. Roberts has now called a temporary halt to that fine. (I’m not sure it is called a “fine.”)

Please note: that li’l old article at The Hill got 1,243 comments! (Almost all of them, however were devoted to the topic of TDS – “Trump Derangement Syndrome.”  So whoever said The Hill newspaper has to be unbiased?)

Why Are Courts Allowed To Impose Penalties for Contempt?

The concept of contempt of court has been around since the 12^th century.  It is of benefit, as we do not want the courtroom to be a rowdy place.  Dignity surrounding authority is essential to our feeling of respect for law.

I will mention below the possibility of criminal contempt but first to the matter of civil contempt.

Civil Contempt

In 2009, a South Australian, Dr Fredrick Toben, was imprisoned for 3 months for contempt of court.  There are two types of civil contempt, direct and indirect. The indirect kind occurs when you do something outside the courtroom.

The judge had ordered Toben to delete anti-Semitic material from his website, and he did not run home and delete it.  In fact he let it be known that free speech is free speech and he did not intend to take it down.

He was therefore in contempt of court. But it was not criminal contempt, as it would have been if he had said to the judge “I won’t carry out your order” or even if he had given the judge a dirty look.

Rather, it was the type of contempt that a parent gets punished for – civilly – for failure to pay child support or failure to show up with the child for the other parent’s “visitation rights.”

Not that the Family Court judge has a surveillance system to see if the parent showed up. No. The aggrieved party has to file again in court for a “contravention order.”

It was the same for Fredrick Toben. The plaintiff in the original case, Jeremy Jones, acting as spokesman for the Jewish community – whatever that means – had brought the complaint about the website in the first place.

Jones then went back to court to report that the judge’s order had not been carried out.

Criminal Contempt

To repeat: that was a civil contempt of court. Toben had not wrecked courtroom decorum. He did not, even after serving the prison sentence, end up with a criminal record.  Odd isn’t it, that you can sit in jail and not be a criminal?

The persons who get criminalized by a judge do get a criminal record.  But they actually have more rights than Toben had, or that a no-show parent has. Criminal contemnors (love that word) can appeal and question due process and often win.

And their deed has to have been committed beyond reasonable doubt and must include deliberate intent.

Among the sins for which you can be arrested for criminal contempt are:

— Refusal to testify as a witness

— Failure, as an attorney to show up in court (unless there is a good excuse)

— Behavior, as an attorney, that is insulting to the other attorney, or of course, to His Honor.

— Behavior as a litigant or person in the gallery of the court who disrupts the proceedings

— Use of vulgar language in documents submitted

Violations of the dress code are not contempt unless the person has been warned.

You may recall the Fuck the Draft case, which started in California and ended up in the US Supreme Court. A man had walked into the courthouse – not actually the courtroom – wearing a jacket that was embroidered with the words Fuck the Draft. (This was during conscription days.) He was arrested, but SCOTUS found that the First Amendment protected him.

The court’s power to cite for contempt is inherent. A legislature may refine it but cannot erase it. I believe a parliament can extend the traditional definion of “in the courtroom” to include what goes on at a grand jury hearing, or when a person is filling our papers with the court clerk.

“D Notices”

During my attendance at the hearings in Sydney’s coronial court, regarding the Lindt Café hostage deaths, I was taken aside and told that I had breached an order – given generally to any attendee and all media – to suppress the name of the police psychiatrist in the ‘negotiating” team.

The reason I goofed is that witnesses and the coroner’s staff used the man’s name during testimony, so I thought it was a code name.  For example, “Officer A” was always called “Officer A” in the courtroom. His real name was secret — I am not sure why.

One of the police negotiators was openly called Darren (that is, a code name), so I correctly wrote “Darren” in my GumshoeNews report. Anyway, having been told to stop revealing the name of the psychiatrist, I ran back to Editor Dee and asked her to substitute a new name in my already-published report.

That said, when it is the government, not a court, that asks the media to stay hush-hush, it is not – as far as I know – a crime to disobey.  In short, a “D Notice” to the press is but a request. Not an order. The right to free speech prevails.

But there is black-letter law that tells the media not to reveal the name of children in a court case. And as for the much-talked about section 121 of the Family Law Act (1974), preventing the parties from publicizing their case, I must say it is Greek to me and I do not want to hold forth on it.  Here at Gumshoe we have described cases by using fake names such as “Darlene” and her child “Ellen.”

As a separate matter, there is such a thing as criminal libel and such a thing as being sued for libel. Generally the word libel applies to written defamation, slander refers to spoken. GumshoeNews needs to be careful not to break the law as we could “lose our license,” or lose our wallet (had we a wallet to lose).

Contempt in New Mexico

While contempt of court is part of the common law, there is wiggle room in each state for nuance or interpretation of the law. I have looked up the law in New Mexico Family Law manual and found these tidbits:

— Officers of a corporation can be punished for a corporation’s contempt.

— Non-parties can commit contempt only while acting in concert with a party, or as a privy of a party, or as part of a conspiracy.

— A mentally incompetent person cannot commit criminal contempt. [Oh?]

— Mere nasty talk during testimony is not contempt if not directed at anyone, and if not loud or boisterous as an attempt to disrupt the Court. [Okay!]

— Failure to stand for the Court is not a contempt per se since rising is not fundamental to order (spectators), contra lawyers, who are officers of the court.

— Hairstyle, make-up, tattoos, piercing, etc., can never be the basis for contempt.

— Intoxication alone is not a basis for contempt, except for attorneys who are officers of the court.

— Substituting a third party for a prisoner or litigant is contempt. [Who would have thought of it!]

— Improper interference with property that is in the custody of the law may be contempt.

— Interference with a receiver’s rights may be contempt.

— Attorney incompetence is not contempt. [Whew!]

— An attorney knowingly filing false documents is contempt. [Darlene alert.]

— Attorney’s refusal to serve or seeking to withdraw may be contempt. [Darlene alert.]

— Out-of-court comments about a judge who recused from the case, accusing him of conducting a show proceeding, violation of judicial code of conduct, political corruption, while uncivil and discourteous are not contempt if the statements had no effect on the pending trial.

— An attorney’s making repeated objections may be contemptuous, but the judge must balance the chilling effect on zealous advocacy.

— When compelling an expert to testify to his expert opinion without pay, the jurisdictions are split over whether refusal to testify is contempt. [I vote yes.]

Two things that a juror might be cited for in New Mexico, and probably everywhere, are: violating an admonition from the judge, and breaking sequestration of jurors.

Lastly, with recollection of the VV case that Heather Frizzell brought to light concerning Tsarnaev’s cell-phone calls, this is the deal in New Mexico, and possibly universally:

— Refusal to testify in a criminal proceeding to avoid self-incrimination is not contempt, but a witness must give judge enough facts to show the likelihood of self-incrimination.

— Refusal to testify will be contempt if witness has been given actual immunity [See Apodaca v. Viramontesn (1949), dealing with grant of immunity by District Attorney who had no authority top give immunity].

— Fear of reprisal alone is not a defense to contempt for failure to testify. [Wow.]

Richard Garner Really Went Overboard with PAS

Richard Gardner, MD, died in 2003. He was the man who pushed Parental Alienation Syndrome, PS (rather like FMS –- False Memory Syndrome, which he endorsed). Unbelievably Gardner suggested that children be cited for contempt of court in regard to custody matters.

Fasten seatbelts, everybody, here it comes:

“Another approach that would prove useful is for the courts to find an older child (11-16) to be in contempt of court if he (she) does not visit with the alienated parent. Once found to be in contempt, the youngster can be placed in a juvenile detention center for a few days to reconsider his (her) decision.

“Obviously, this is not the kind of a punishment that I would recommend for younger children. One might argue that such placement would expose the child to more serious offenders and he/she would thereby pick up their bad habits. If such placement is short-term, I doubt that this is likely to happen. The youngster might be offered a visit or tour of the facility in advance while he or she is considering refusal.

“Another consideration, especially for younger children, would be temporary placement in a foster home or a shelter for abused children. This is obviously punitive and could help such children rethink their decision not to visit. [Emphasis added]

“Such placement could also serve as a transition site for visits with the victimized parent. There is much too much coddling, indulging, and “empowering” PAS children. These measures would provide sorely needed disempowerment”

Holy cow!