There is an interesting ruling out of the Florida Supreme Court where a trial court’s order of contempt was overturned due to the failure of the trial court to afford a lawyer for potential juror Noel Plank. He was held in contempt for allegedly appearing at court drunk. The exchange with the Court is detailed in the opinion, which reaches an interesting distinction between direct and non-direct criminal contempt.

A deputy reported that Plank smelled of alcohol and he was given a test after waiting three hours at the courthouse. He registered a blood-alcohol level of 0.111 — well above the .08 legal limit for drivers. He confirmed that he had driven to the courthouse but challenged the officer by objecting “What I’d like to know, is how I got the smell of beer on my clothes when I never spilt one drop on my clothing.”

Plank seemed intent on saying anything that would get him out of jury duty but also described the hardship such duty can hold for many people. Here is the description from the Court:

On April 15, 2013, Noel Plank, a prospective juror, appeared for jury duty at the Leon County Courthouse at 11:30 a.m. and was part of a panel that was seated in the courtroom at approximately 1:40 p.m. In response to general biographical questioning, Plank advised the trial judge that he had various issues that would make it difficult for him to serve on the jury:

I work a full day. I work 13 hours on Thursdays, and I have no time or money to sit in court waiting for all of y’all. First of all, I’m going to tell you straight out. I’m antiwar, Vietnam draft card burner, and avoided the Vietnam war. I’m also 4F.

When the judge inquired about the meaning of “4F,” Plank responded:

Unqualified for military. Another thing is I’m antigovernment. I have not voted since Ronald Reagan was president. I’m not even registered to vote. And I’m also, to tell you the truth, I’m a drunk.

The trial judge did not excuse Plank based on those reasons, and jury selection
continued.

In response to later general questions pertaining to his background, Plank responded as follows:

My name is Noel Plank. I’m a driver. I deliver Homes & Land, Tallahassee Woman. You’ve seen them on magazine racks all over Tallahassee. I have no spouse. I’m divorced. I do have a daughter, but she lives with my ex. She’s a writer at FSU. I’ve lived here for 23 years . . . . And as far as victim of crime, yes, I have been a victim of several crimes, identity theft, theft of over a thousand dollars’ worth of professional camera equipment, theft of cell phone, and I’ve been burglarized a couple of times, nothing serious taken except a six-pack of beer, which I was kind of teed off at, because I was looking forward to having a beer after work, when I got home after work.

And the police officer says—the sheriff’s asking me, “Did you check the fridge?” I said, “I never thought of that.” And sure enough, they took, they took my six-pack of beer. Okay. I found that out. And I can listen but my mind goes from about here to here (indicating) and I’ll forget. You can tell me your name. I will forget it as soon as I walk ten feet. I, I have a bad memory, okay, because I also have a plastic plate in this side of my head. That’s why I’m 4F from the military. I’ve had a bad car accident when I was 17, and things have happened and I’m getting older and I’m starting to lose my memory. Okay? And—okay. I know no other jurors in here. I’ve never served on a jury before.

It was after Plank fell asleep in court, that the test was administered.

The Supreme Court ruled that the trial court erred in classifying Plank’s behavior as direct criminal contempt since some of his conduct occurred outside the presence of the judge. As a result, he was entitled to a lawyer under Florida procedural rules for indirect contempt and his conviction should be vacated. In a case of direct criminal contempt, Plank would be facing six month or less and not entitled to counsel.

The Court drew the following distinctions:

In determining whether Plank committed criminal contempt, the trial judge took testimony from a probation officer regarding Plank’s blood-alcohol level after the officer administered a breathalyzer test. In addition, the trial judge relied on off-the-record statements from the jurors that Plank smelled of alcohol and Plank’s own admissions that he drank before attending jury duty and that he drove to the courthouse. While the trial judge may have seen that Plank was asleep or that he had to
be awakened by the other jurors, the order supporting the contempt conviction fails to specify which acts the trial judge personally observed or whether this information was presented to the judge from other jurors, who attempted to wake Plank during a break so they could pass by his seat. If the only act personally observed by the trial judge was a prospective juror who fell asleep during voir dire, this is not the type of willful misconduct that would typically require a court to use its “unique power.” Schenck, 645 So. 2d at 74 (emphasizing that the provocation to justify direct criminal contempt “must never be slight, doubtful, or of shifting interpretations,” but must be an occasion where the need to act is “real and necessary . . . and not ameliorated in some less formal manner”); Emanuel, 601 So. 2d at 1274 (stating that the power to exercise direct criminal contempt “must be cautiously and sparingly used”). Whenever a judge must take testimony during a criminal contempt proceeding or rely on additional evidence not directly observed by the trial judge, the proceeding is no longer direct criminal contempt but becomes indirect criminal contempt.

The decision is well-written and defends an important protection for citizens in such cases.

Here is the opinion: Plank Opinion

Source: ABA Journal