Kallins v. Superior Court of the State of California

Full title: MAUREEN R. KALLINS, Petitioner, v. SUPERIOR COURT OF THE STATE OF…

Court: United States District Court, N.D. California

Date published: May 25, 2002

No. C00-3938 TEH (N.D. Cal. May. 25, 2002)

Opinion

No. C00-3938 TEH

May 25, 2002

ORDER RE HABEAS CORPUS PETITION

THELTON E. HENDERSON, United States District Judge.

I. INTRODUCTION

This petition presents the following questions: Does a trial judge have ultimate authority over the conduct of attorneys in the courtroom? Where should the line be drawn between zealous advocacy and contemptuous disrespect? At what point is the court justified in foregoing full due process protections through the use of summary contempt procedures? Did petitioner's conduct in this case merit the imposition of summary criminal contempt and incarceration on each of four separate occasions? If not, were some or all of the trial court's decisions sufficiently unreasonable in light of clearly established federal law as determined by the United States Supreme Court to merit this Court in issuing a writ of habeas corpus?

As discussed below, we conclude that in certain circumstances, however rare, and with properly detailed findings, summary criminal contempt sanctioned by incarceration is an appropriate and constitutionally sanctioned remedy available to the trial courts. Having reviewed the lengthy briefs and exhibits submitted by the parties in this case, and having heard from counsel for both parties at oral argument, this Court concludes that the use of summary contempt by the Superior Court was proper in three of the four instances presented to this Court. On that basis, the petition for writ of habeas corpus is granted in part and denied in part, as discussed below.

II. FACTUAL BACKGROUND

Petitioner represented defendant Anthony Reed in a criminal trial in the Alameda County Superior Court in the latter half of 1999. The trial was presided over by the Honorable Jeffrey W. Horner. Defendant Reed was charged with rape and related offenses, and he presented a defense on the basis that he had a reasonable good faith belief that the victim had consented to sex. During the course of the trial, in December 1999 and January 2000, petitioner engaged in a variety of behavior, discussed in detail below, which led Judge Horner to find her in summary contempt on four separate occasions, resulting in a cumulative fine of $4,000 and twenty (20) days in jail.¹

1 A fifth contempt finding, with a $300 fine and no jail time, is not challenged by petitioner in federal court.

A. The Fair Trial Order

Prior to trial, the prosecutor requested the issuance of an order setting forth standards of conduct for counsel during the trial. As part of its motion, the prosecution submitted voluminous accounts of petitioner's allegedly inappropriate and outrageous conduct in past cases. After reviewing the motion and hearing the argument of both counsel, Judge Horner entered the prosecution's proposed order, titled Order Limiting the Conduct of the Attorneys in Front of the Jury (hereafter "Fair Trial Order"),² on October 25, 1999. (Respondent's Records Lodged in Support of Answer to First Amended Petition for Writ of Habeas Corpus [hereinafter "RR"], Volume I, Exhibit 1, Attachments C and D). The Order sets forth thirty-three (33) rules including, for example:

2 This is the shorthand title used by the Superior Court.

1. Neither attorney shall yell, scream or shout at witnesses, jurors, opposing counsel, the judge or court staff. (California Penal Code § 1044) . . .

21. Neither attorney shall make speaking objections in front of the jury or witnesses; all objections shall be limited to stating, without any additional comment, the legal grounds for the objection. (California Penal Code § 1044) . . .

(RR Vol. I, Exh. 1, Attachment C). As with these examples, each rule of the Fair Trial Order includes a reference to the statute and/or case law supporting the rule.

Upon entering the written order, Judge Horner "amplified" its written terms by emphasizing the ban on speaking objections and stating that any violation of that ban would be "considered a direct violation of a clear, direct and specific order of the court in this case and will be dealt with accordingly." (RR Vol. I, Exh. 1, Attachment D at 11:24-27). Judge Horner further amplified the Order with respect to counsel's need to accept the court's rulings without argument (apart from what was necessary to preserve a point for appeal), various mandates for respect, and a prohibition on the mention of penalty or punishment. ( Id. at 11-25).

B. The Four Orders of Contempt

1. The First Order of Contempt

During the direct examination of a prosecution witness, Ms. Karen Banuelos (whom defendant Reed allegedly had sexually assaulted in 1997), the prosecutor attempted to refresh the witness's recollection, and petitioner objected. (RR Vol. I, Exh. 1 at 1). The colloquy occurred as follows:

Mr. Jacobson: Q. Ms. Banuelos, have you had an opportunity [to] read that to yourself?

A. Yeah.

Q. Does that refresh your memory?

A. Yeah.

Q. Did they put the pillowcase over your head?

Ms. Kallins: Objection.

The Court: On what grounds?

Ms. Kallins: There's no lack of recollection. She said she thought it was —

Mr. Jacobson: This is a speaking objection.

The Court: It is. The objection's overruled.

Ms. Kallins: Well, I have an objection.

The Court: All right.

Ms. Kallins: I still have an objection whether I get to speak it or not. The objection is it's an improper question.

The Court: Ms. Kallins — I think it's time we had a little hearing outside the presence of the jury. Ladies and gentlemen, we're going to take our noon recess now. . . . [Whereupon the jury left the courtroom, and further proceedings were held outside the presence of the jury.]

(RR Vol. I, Exh. 1 at 2-3).

Immediately after dismissing the jury, Judge Horner held a hearing on the matter in court. Judge Horner stated that while petitioner had made an improper speaking objection, she had been interrupted before completing her statement, and that the impact would not necessarily be prejudicial. On that basis, the court stated its decision "to simply remind counsel that speaking objections are strictly prohibited [and] to simply proceed." (RR Vol. I, Exh. 1 at 4). The court then asked the prosecutor for his thoughts, and as the prosecutor began to respond, petitioner interrupted by loudly exclaiming, "that's ridiculous!" ( Id) The court described the subsequent events as follows:

In extraordinarily angry, rude, insolent and confrontational tones, at times loudly shouting at the Court, Ms. Kallins berated the Court for approximately 15 minutes. In this wide-ranging statement, Ms. Kallins attacked the fairness of the court proceedings, accused the Court of improperly favoring the prosecutor, made derogatory comments about her opponent, the prosecutor, engaged in wholly inaccurate personal descriptions of the Court, and attacked the integrity of the Court of Appeal.

( Id). After the court warned petitioner that her statements violated the portion of the Fair Trial Order prohibiting personal attacks on her opponent and on the integrity of the court, petitioner "launched into another extended address . . . [d]elivered in increasingly angry and extremely loud. rude., insolent and confrontational tones" in which she "again attacked the fairness of the trial proceedings, attacked the integrity, fairness and impartiality of the Court, [and] made personal and derogatory descriptions of the Court. . . ." ( Id. at 5-6). The court noted that at various times during the hearing petitioner "was literallyscreaming at the Court, at what surely must be the top of her lungs," and that "the decibel level used by Ms. Kallins . . . is simply the highest and the most offensive this Court has ever heard." ( Id at 9 [emphasis in original]). The court also told petitioner that not only was she violating the Fair Trial Order, "but I have several times interjected during the course of your colloquy to warn you about the direction you were taking." ( Id, Attachment A at 26:5-7).

To cite one example of petitioner's disrespect, Ms. Kallins said to the court: ". . . Your attitude toward what I do is as if I'm an eight-year-old child, with your helper, my probation officer, Mr. Jacobson [the prosecutor]. It's ridiculous . . ." ( Id., Attachment A at 6-7).

At the conclusion of the hearing, the court ruled that petitioner's improper speaking objection did not rise to the level of meriting sanctions, but that petitioner's subsequent "fit of diatribe" contained numerous incidents of misconduct that collectively constituted contempt of court. (RR Vol. [, Exh. I at 6-7). The court explicitly used its summary contempt power, stating that "[t]here is no issue involved in the need for a hearing to show cause. I am finding you in contempt of court." ( Id, Attachment A at 3 4:7-8). Nonetheless, the court continued the matter by three days (subsequently extended to one week), "not to hold a hearing but to give Ms. Kallins the opportunity to explain her conduct." ( Id, Attachment A at 34:15-16). On that continued date, "Ms. Kallins responded that she had nothing further to say, [and] gave no explanation of her statements or her conduct to the Court, nor did she express any statements of remorse, regret or apology." ( Id.) The court reviewed the transcript and considered the proceedings as a whole to decide whether there were any factors in mitigation of petitioner's conduct. Rather than finding any mitigating circumstances, the court found that petitioner had subsequently committed further acts of misconduct. The court did not impose additional sanctions, but considered the subsequent acts as evidence that petitioner did not have genuine remorse and did not have any intention to curb her behavior. (RR Vol. 1, Exh. I at 10-12). The court ultimately confirmed its determination that petitioner's outbursts on December 6th warranted the court's exercise of its summary contempt power. ( Id at 20). Specifically, the court found petitioner in contempt for violation of California Code of Civil Procedure § 1209(a)(1) [disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceeding] and § 1209(a)(5) [disobedience of any lawful judgment, order, or process of the court].

On December 15, 1999, Judge Horner issued a meticulously detailed twenty-one page Order and Judgment of Contempt, providing a full statement of the facts, the precise factual and legal bases for the court's conclusion, and copies of all relevant documents, including the transcript on the December 6th hearing.

2. The Second Order of Contempt

On December 14 and 16, 1999, Judge Horner again found petitioner in contempt. The court found that petitioner engaged in numerous acts of misconduct, most of which the court considered to be contumacious standing alone. Nonetheless, the court issued a single contempt order based on the aggregate of all the misconduct occurring on those two days of trial.

One of the incidents leading to the contempt finding stemmed from petitioner's complaint that the defendant could not see the witnesses as they testified. In response, on December 16th. outside the presence of the jury, the court had the bailiff sit in the defendant's chair while Judge Horner (and later the court clerk) sat in the witness chair. As a result of this test, the court concluded that petitioners complaint was unfounded. During this hearing, petitioner "railed at the Court" in an "increasingly loud, insolent and extremely argumentative fashion . . ." (See Respondent's Exhibit 2 at 9) Within two minutes of resumption of the proceedings before the jury, petitioner exclaimed "Your Honor, my client cannot see the witness." ( Id. at 12) The court found that petitioner's statement was deliberate and willful misconduct made for "the express purpose and with the specific intent to prejudice the jury in favor of her client." ( Id. at 12-13)

Another incident of misconduct occurred when petitioner asked a witness a question, the prosecutor objected as asked and answered, and the court sustained the objection. In response to the 8 ruling, petitioner addressed the court as follows: "Oh really? What is the answer if it's been answered sufficiently? I'm unclear." The court replied, "I ruled it asked and answered." Petitioner responded, "Well, it's not clear to me, and I have a client to represent." The court warned petitioner and then told her, "I ruled, and you will move on to another avenue." Petitioner replied, "No." Nonetheless, petitioner subsequently went on with the examination with other questions. ( Id at 17 Attachment K at 25-26) In the contempt order, the court found that "Ms. Kallins engaged in an extremely hostile and totally improper speaking objection, openly questioning and criticizing the Court's ruling in the presence of the jury; she did so not once, but twice, ignoring the Court's clear admonition and ruling." ( Id. at 17)

These are but a few examples of the conduct for which petitioner was found in contempt. The court additionally identified further acts of misbehavior which, while disturbing, were specifically excluded from the contempt finding. For example, after petitioner complained that she could not see the rape victim on the witness stand, the court allowed petitioner to sit in the audience, from which petitioner proceeded to stare "continuously, intently and directly, for extended periods of time, at various members of the victim's family and support persons . . . visibly making these persons extremely nervous and uncomfortable." ( See Respondent's Exhibit 2 at 6) In a subsequent incident. the court was informed that petitioner "stuck her tongue out at opposing counsel" in the presence of the jury. ( Id at 6) The court did not include this incident in the contempt finding because Judge Horner did not personally observe it. At another point Judge Horner and his staff heard "Ms. Kallins emit a loud, unrestrained and somewhat prolonged belch." ( Id at 27) [emphasis in original]. The court did not include this incident in the contempt finding because it occurred just after the contempt sanction was imposed.

3. The Third Order of Contempt

On January 11, 1999, following the close of evidence and before closing arguments, the court reminded counsel that it would strictly enforce its prior order precluding mention of penalty or punishment. (RR Vol. III, Exh. 3 at 2-3, 5-6) Nevertheless, shortly after commencing her closing argument, in reference to an accusation that the defendant had threatened a sheriffs deputy in jail, petitioner made the following statement to the jury:

He threatened her life, and she was so petrified. This was such a horrible crime. There's a man in jail. Been in jail for five years. He commits this horrible crime of threatening one of the people in his jail's life, a woman, but she didn't tell anyone about that. Because it's true or not true. Because you should put a lot of weight on it and send him to prison or convict . . .

( Id. at 4). The prosecutor immediately objected to the reference to penalty. The court sustained the objection and ordered petitioner's comment stricken. ( Id.).

Later, after excusing the jury for lunch, the court held a hearing to address petitioner's conduct. Petitioner asserted that the reference to prison "slipped out," and she apologized to the court. ( Id at 7-8) The court refused to accept the apology, stating:

With respect to [petitioner's] representation that it simply slipped out, I do not believe those representations. I find them untruthful and disingenuous. I find them untruthful because of the entire context of which we find ourselves. of all the points of law that this Court has discussed with counsel, none has been discussed in more detail . . . than this specific subject . . . and it has been the subject which we have visited again and again throughout these proceedings. . . . As Ms. Kallins has repeatedly represented to this Court, which I accept, she is an experienced attorney. . . . This is not something which could be attributed as a, quote 'rookie mistake,' or mistake of someone who has not been in this forum before and has not dealt with issues such as this. Accordingly, I find [petitioner] in contempt of court. I find that, as did both the Superior Court and ultimately the Supreme Court in Pounders v. Watson, I find that her statement was not only deliberate, it was premeditated, to borrow phrases from other areas of the law. And it was made with the express purpose of creating, and that it did in fact create, prejudice in favor of her client which cannot be overcome.

( Id at 9-11). The court then imposed its third five-day jail sentence and $1,000 fine for contempt. ( Id. at 11).

4. The Fourth Order of Contempt

Subsequently, petitioner resumed her closing argument, during which she stated: "I've got the detail maintenance. I've got to monitor for detail because the details are what they're trying to send him away on. That's what they're trying to. . . ." ( Id at 12-13) Before petitioner could complete the sentence, the prosecutor objected to the reference to penalty, and the court sustained the objection. Petitioner again resumed her closing argument, and stated, "the details are important and you cant go in there and throw them away. You can't throw away a life. Because even if he did rape others, you can't throw away a life." ( Id at 13)

During the mid-afternoon recess, the court held further contempt proceedings. The court found the combination of the reference to "sending him away" and the later references to "throw away a life" were a deliberate, "rather thinly-veiled reference to penalty and punishment." ( Id at 13) The court noted that it had just held petitioner in contempt for misconduct of the same nature. When the court indicated that it was considering further severe sanctions, including the possibility of terminating the defense's closing argument (this sanction ultimately was not imposed), petitioner laughed. ( Id at 16) Judge Horner expressed his frustration and exasperation with petitioner's conduct, stating that she was "totally out of control," and warned her again that "[i]f I hear any further reference in that respect in your closing statement, I will stop the proceedings . . . [and] I may have to do something more drastic that [sic] imposing sanctions for contempt of court." ( Id at 17)

Petitioner again resumed her closing argument, during which she made the following statement in anticipation of the prosecution's likely rebuttal argument: "Mr. Jacobson I know is going to . . . say, first, they can't conspire. They can't all get their stories together. They can't conspire. We know that it can't happen. If that were true, no one would wrongfully on some police theory that was rigged go to prison but the other." ( Id at 19) The prosecutor objected the reference to prison, and the court excused the jury and held another hearing.

During the hearing, petitioner explained that she had intended to argue that people have been exonerated by the Innocence Project, and that her argument had nothing to do with the penalty in the instant case. (RR Vol. III, Exh. 3 at 23-24).³ The court stated that any such references would be completely inappropriate and outrageous, and that "if this is an explanation for her misconduct, what that indicates to me . . . is that Ms. Kallins' statement was deliberate . . . It was designed to place before the jury matters directly relating to the subject of penalty or punishment." ( Id at 26)

3 Petitioner also stated: "Let the record reflect that the Court just leaned over, raised his voice, pointed with a very red face absolutely outraged." ( Id at 24). The court apparently did not respond to this accusation at the time, but in its written order the court states: "[I]t is . . . probably fair to state that the Court did lean slightly forward in its seat in addressing the question to her. However, the remainder of Ms. Kallins' 'descriptions' of the Court's demeanor are flatly wrong." ( Id at 25).

The court then ruled that petitioner's argument amounted to contempt, and that it was "extraordinarily outrageous because it follow[ed] so very closely in time to the very specific and clear admonition I gave to Ms. Kallins that she must not under any circumstances address the subject of penalty or punishment." ( Id) As the court spoke, petitioner repeatedly interrupted and made "a series of exclamations, delivered in the same rude, arrogant and insolent tone which had marked so many of her previous remarks to the Court, some of which have been noted in previous written orders of contempt." ( Id at 26) After finding petitioner in contempt for the last reference to penalty, Ms. Kallins interrupted and said: "I'm never paying that." ( Id at 27). Exasperated, the court again threatened to terminate petitioner's closing argument, but ultimately it never did so. Finally, petitioner concluded her closing argument, which the court has described as "vigorous, aggressive, emphatic and lengthy, [but with] no further incidents of misconduct." ( Id at 31). The jury ultimately convicted the defendant on all counts. ( Id. at 32).

III. PROCEDURAL BACKGROUND

Petitioner appealed the contempt orders to the California Court of Appeal, First Appellate District, which summarily denied the appeal on August 17, 2000, without issuing a published opinion. Subsequently, petitioner filed petitions for review with the California Supreme Court, which were denied on October 17, 2000.⁴

4 Justice Stanley Mosk expressed the opinion that the petitions for review should have been granted.

On October 25, 2000, petitioner filed a "Motion for Stay of State Proceedings Pending Petition for Writ of Habeas Corpus" ("Stay Motion") in this Court. Through that motion, petitioner "pray[ed] this court to issue an order staying all state proceedings pending review of the petition." See Stay Motion at 7. Attached to the Stay Motion was a Petition for Writ of Habeas Corpus, with exhibits comprising the cursory written denials of petitioner's state court appeals and petitions for review, a letter brief of amicus curiae, and an affidavit of petitioner's law partner and husband, Charles Gretsch. Petitioner did not submit to this Court any of the transcripts of the trial court proceedings, nor did petitioner submit any of Judge Horner's lengthy written orders and judgments of contempt, even though these were clearly in petitioner's and her counsel's possession. Based on petitioner's request for hearing on an extremely expedited basis, and on her counsel's representation that Judge Horner had ordered her to appear in Superior Court on October 27th to surrender to the sheriff and to begin her jail sentence on that day, this Court scheduled a hearing at 10:00 a.m. on October 27, 2000, less than two days from the time the motion was filed. At the conclusion of the hearing, the Court denied the request for a stay, and informed counsel that a written order would follow.

Petitioner immediately presented a request for a stay to the Ninth Circuit Court of Appeal, which was granted that same day. This Court subsequently set a briefing schedule and provided petitioner the opportunity to revise and re-file her petition if she so chose. After the briefing was completed, the Court set a hearing for October 22, 2001.

IV. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In addition, habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the decision-maker's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.), cert. denied, 121 S.Ct. 627 (2000).

"Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams (Terry) v. Taylor, 120 S.Ct. 1495, 1518, 1523 (2000). "Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Id While a state court decision may no longer be overturned on habeas review simply because of a conflict with circuit-based law, circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established." See Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Moore v. Calderon, 108 F.3d 261, 264 (9th Cir.), cert. denied, 521 U.S. 1111 (1997).

Under the first prong of the AEDPA, a federal court may grant the writ pursuant to the 'contrary to' clause if the state court "arrives at a conclusion opposite to that reached by th[e] [Supreme] Court on a question of law or if the state court decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts." Williams, 120 S.Ct. at 1523. Under the 'unreasonable application' clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 120 S.Ct. at 1523. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id at 1522.

Under the second prong of the AEDPA, 28 U.S.C. § 2254(d)(2), a federal habeas court may grant the writ if it concludes that the state court's adjudication of the claim resulted in a decision that "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000), quoting 28 U.S.C. § 2254 (d)(2) and Williams, 120 S.Ct. at 1523. The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under the first prong of the AEDPA (§ 2254(d)(1)) also applies in determining the "unreasonable determination of the facts in light of the evidence" under the second prong (§ 2254(d)(2)). See Torres, 223 F.3d at 1107-08, citing Van Tran, 212 F.3d at 1153-54. To grant relief under § 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Id at 1108, quoting Van Tran, 212 F.3d at 1153-54 [internal quotation marks omitted].

The AEDPA separately addresses the district court's obligations in reviewing factual determinations. 28 U.S.C. § 2254(e)(1). A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence; conclusory assertions will not suffice. 28 U.S.C. § 2254 (e)(1). Factual issues are defined as "basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000) (citations and internal quotation marks omitted). Factual statements by a state court made outside "usual judicial procedures designed to ensure accuracy" are not "factual determinations" within the meaning of § 2254(e)(1), and thus are not given deference by a federal habeas court. See Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir. 1999) (factual statements in state trial judge's letter to counsel regarding question from jury not given deference under § 2254(e)(1)).⁵

5 Respondent's rendition of the legal standard in its Answer is consistent with the explanation above. Notably, petitioner does not challenge respondent's characterization of this standard and, indeed, neither in her petition, amended petition, nor traverse does petitioner even address the matter.

Lastly, although the habeas statute refers to persons "in custody" ( 28 U.S.C. § 2254). petitioner need not show that she is in actual, physical custody to obtain relief. See Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Rather, it is sufficient to show that her conviction has made her subject to "severe restraints on [her] individual liberty." Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). Restraints are severe when they exceed those which the state imposes upon the public generally, see Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and when they "significantly restrain [the] petitioner's liberty to do those things which in this country free men are entitled to do." Id at 243; see also Phelps v. Barbara, 162 F.3d 1174 (10th Cir. 1998).

V. DISCUSSION

1. California's Summary Contempt Law

A. Due Process and the Limitations on Summary Contempt

California law provides the courts with the power to punish certain misconduct by summary contempt. With particular relevance to the instant case, the California Code of Civil Procedure defines contempt as including "disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceeding," as well as "disobedience of any lawful judgment, order, or process of the court." Cal. Code Civ. Proc. §§ 1209(a)(1), 1209(a)(5). This definition applies to all contempt, whether treated summarily or with full due process.

The use of the summary contempt procedure is limited to the following circumstances:

When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.

Cal. Code Civ. Proc. § 1211(a);⁶ Boysaw v. Superior Court of Los Angeles County, 23 Cal.4th 215. 219-20 (2000).⁷

6 The Code also restricts the use of the contempt sanction for "speech or publication reflecting upon or concerning any court of any officer thereof" to conduct "made in the immediate presence of such court while in session and in such a manner as to actually interfere with its is proceedings." Cal. Code Civ. Proc. § 1209(b).

7 The Court notes that federal law, although not directly relevant to the instant case, is similar in its treatment of the summary contempt power. Title 18 U.S.C. § 401(1) provides:

A court of the United States shall have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as — (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

Rule 42 of the Federal Rules of Criminal Procedure provides in part:

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record. (b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice.

The elements of criminal contempt under Section 401(1) are (1) misbehavior in the court's presence, and (2) obstruction in the administration of justice. Additionally, the misbehavior must be willful. See U.S. v. Rrapi, 175 F.3d 742 (9th Cir. 1999); United States v. Armstrong, 781 F.2d 700, 706 (9th Cir. 1986) ("willfulness is defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful. It implies a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order"); In re Gustafson, 650 F.2d 1017. 1020 (9th Cir. 1981).

2. United States Supreme Court Precedent

The history of the law of contempt in American jurisprudence reveals an ongoing and overt tension between the view of the contempt power as an inherent and necessary weapon of the courts to enforce their orders, and the fear that courts will misuse their authority to punish unpopular individuals or groups. Since the early days of the Republic, if not even earlier, the courts have claimed an inherent authority to enforce their orders and punish contemnors with criminal sanctions. See, e.g., Voss v. Luke, 28 F. Cas. 1302 (C.C.D.C. 1806); Ex parte Terry, 128 U.S. 289, 307 (1888) (summary punishment was permissible for acts that occurred in the "face of the court" without the necessity of giving notice and the opportunity to be heard prior to punishment); Livingston, Disobedience and Contempt, Wash. Law. Rev. 345, 3 56-57 (April 2000). At the same time, the courts have long been cognizant of the enormous potential for abuse in the contempt power, which is the only area of our jurisprudence in which the functions of prosecutor, judge, and jury merge and are held by a single individual.⁸ See, e.g., Anderson v. Dunn, 19 U.S. (6 Wheat) 204, 231 (1821) (emphasizing the exercise of "the least possible power adequate to the end proposed"); Cooke v. United States, 267 U.S. 517 (1925) (summary action of contempt is a denial of due process unless the offense is committed in front of the court).

8 Justice Black has described the court's power to try direct contempts summarily "'as perhaps, nearest akin to despotic power of any power existing under our form of government.'" Green v. United States, 356 U.S. 165, 193-94 (1957) (Black, J. dissenting) ( quoting State ex rel. Ashbaugh v. Circuit Court, 72 N.W. 193, 194-95 (Wis. 1887)); see also In re Gustafson, 650 F.2d 1017, 1023 (9th Cir. 1981).

The constitutional limitations on the courts' summary contempt power were described most recently by the United States Supreme Court in Pounders v. Watson, 521 U.S. 982 (1997).⁹ In that case., defense counsel Penelope Watson represented a single defendant in a multi-defendant murder trial. Two of the co-defendants' counsel raised the issue of the length of defendants' potential punishment in front of the jury, and Judge Pounders admonished them that the issue of punishment should be off limits. Approximately two months later, in the same trial, Ms. Watson raised the issue of punishment, and was admonished to refrain from that line of questioning. Her next question to the defendant was, "You're facing life without the possibility of parole?" 521 U.S. at 985. A side-bar conference immediately followed, during which Judge Pounders inquired why he should not hold Ms. Watson in contempt. She stated that her line of questioning sought to explore the witness's state of mind and was not intended to prejudice the jury. The court disagreed, held Ms. Watson in summary contempt for disobeyance of a court order in violation of the California Code of Civil Procedure section 1209(a)(5), and imposed a two-day jail sentence to be served at the end of trial. Id at 985-86.

9 The Pounders decision was rendered per curiam by a seven Justice majority, without full briefing and oral argument. See Pounders, 521 U.S. at 993 (Stevens, J. dissenting); Hanner v. O'Farrell, 142 F.3d 434, 1998 WL 136212 at **6 (Boggs, J., dissenting).
To this date, the Supreme Court has not revisited the issues addressed in Pounders. The Ninth Circuit, which had issued the appellate decision reversed by the Supreme Court in Pounders, has since issued a decision concerning summary contempt in United States v. Rrapi, 175 F.3d 742. supra, as well as three unpublished opinions with cursory treatment of the issue and lacking any analysis relevant to the instant case ( see U.S. v. Torres-Guillen, 232 F.3d 899, 2000 WL 991859 (9th Cir. 2000); U.S. v. Salois, 185 F.3d 871, 1999 WL 459261 (9th Cir. 1999); Hirschfeld v. Arpaio, 178 F.3d 1299 (9th Cir. 1999)). Among the other federal circuits, only two cases discussing Pounders have been reported, both of which are unpublished opinions. See Phelps v. Barbara, 162 F.3d 1174 (10th Cir. 1998); Hanner v. O'Farrell, 142 F.3d 434 (Table), 1998 WL 136212 (6th Cir. 1998) (discussed infra).

Ms. Watson was denied relief in the state courts, and her habeas petition was rejected by the federal district court. However, the Ninth Circuit reversed the habeas ruling, on the basis that "her conduct was not so disruptive as to justify the use of the summary contempt procedure." Watson v. Block, 102 F.3d 433, 437 (9th Cir. 1996), rev'd Pounders v. Watson, 521 U.S. 982 (1997). The Ninth Circuit was not persuaded that the two questions asked by counsel constituted "'such an open, serious threat to orderly procedure that instant and summary punishment was necessary.'" Id at 438. quoting In re Gustafson, 650 F.2d 1017, 1022 (9th Cir. 1981) (en banc) (quoting Harris v. United States, 382 U.S. 162, 165 (1965)). The court further found that there was nothing in the record to show that she had conducted her questioning in a disruptive or disrespectful manner to the trial court. and the court was not convinced that she would have repeated her questioning but for the summary punishment. Watson, 102 F.3d at 438.

In summarily reversing the Ninth Circuit, thereby reinstating the contempt sanction, the Supreme Court began its analysis by stating that "[l]ongstanding precedent confirms the power of courts to find summary contempt and impose punishment." 521 U.S. at 987. However, the Court equally recognized that "the contempt power may be abused," so that "summary contempt [is an] exception to the normal due process requirements, such as a hearing, counsel, and the opportunity to call witnesses." Id; see also In re Oliver, 333 U.S. 257, 275 91948 ("Except for a narrowly limited category of contempts, due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf . . ."). Thus, recognizing both the need for summary contempt power and the potential for abuse, the Court narrowed the acceptable use of this power to "'charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent 'demoralization of the court's authority' before the public.'" Id, quoting In re Oliver, 333 U.S. 257, 275 (1948). of all these requirements, the Court then re-emphasized the importance of confining summary contempt to misconduct occurring in "open court," on the basis that "[w]here misconduct occurs in open court, the affront to the court's dignity is more widely observed, justifying summary vindication." Id.

While the terms of the Court's discussion are general, the Court stated that its ruling is narrow: "All that is before us is the [Court of Appeals'] ruling that respondent's conduct was not disruptive enough to justify contempt." Id at 989. Furthermore, the Court noted that "the States must have latitude in determining what conduct so infects orderly judicial proceedings that contempt is permitted," and that it would not "explore [the] limitations and standards" required by the Due Process Clause in the Pounders decision. Id at 991.¹⁰

10 Petitioner takes the Court's self-imposed limitation a step further, characterizing the Pounders holding as a "fact-specific anomaly." (Amended Petition at 5). This Court respects the Supreme Court's intention to avoid issuing a broad holding, but does not find the Supreme Court's application of the principles of summary contempt to the facts of that case anomalous, especially in light of other precedent upholding summary contempt orders in analagous circumstances, as discussed above.

This is not to say, however, that all of the discussion in Pounders is mere dictum. Rather, much of the Court's analysis draws upon previous well-settled authority. Thus, even respecting the Court's instruction to construe its holding narrowly, the general contour of the Supreme Court's approach to summary contempt remains clear: contemptuous conduct may be dealt with summarily only when it occurs both in open court and in the immediate presence of the judge, and when it challenges the court's authority or disturbs the court proceeding to a degree necessitating a rapid response.

B. Petitioner's Allegation of Judicial Bias

With this overview of California and federal law in mind, the Court turns to petitioner's specific claims. While the Court will address each of the contempt orders individually, infra, we first address a more global challenge raised in the petition.

Petitioner's general approach in her appeals and in this writ petition is to turn the tables by arguing that it was Judge Horner's conduct, not her own, that was out of line. Petitioner paints a picture of a trial judge who was prejudiced from the outset by an unfair propaganda campaign conducted by the prosecution, and who became embroiled with petitioner throughout the trial, leading the court to act irrationally and impulsively. Given the gravity of these charges, this Court has thoroughly reviewed the extensive record in this case, with particular attention to the specific references made by petitioner in her briefs.

As discussed above, the trial court issued the Fair Trial Order, at the prosecution's request. prior to trial. Petitioner argues, as she did in the trial court, that entry of the order showed Judge Horner's favoritism toward the prosecution and bias toward defense counsel. This Court takes that allegation seriously, and is concerned by any effort to control or limit the ability of counsel to vigorously represent their client. As the Ninth Circuit has stated:

Using summary criminal contempt proceedings to punish attorneys for over-zealous advocacy is contrary to the important principle of maintaining an independent and assertive bar . . . [The] procedure should be used only in exceptional circumstances . . . Otherwise the procedure may deter vigorous representation by conscientious attorneys.

In the Matter of Contempt of Greenberg, 849 F.2d 1251, 1255 (9th Cir. 1988). This is especially true for lawyers who are "obscure, unpopular, or defenders of unpopular persons or unorthodox causes." Sacher, 343 U.S. at 19 (Black, J., dissenting) Absent exigent circumstances, due process requires that lawyers accused of contempt be provided the full panoply of protections, including the right to contest their conviction before a neutral decision-maker. Sacher, 343 U.S. at 36-37 ("Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits.") (Frankfurter, J., dissenting).

The Court approaches the Fair Trial Order with these principles firmly in mind. Each of the provisions of the Fair Trial Order is supported by citation to a statute or case law. Thus, technically. the order imposes nothing on counsel beyond their ordinary obligations as members of the bar and as officers of the court. Nonetheless, the Court recognizes that measures that appear even-handed and fair on their face may be applied selectively or too restrictively, so as to create unfairness or prejudice to one party.

On the facts of this case, however, the Court fails to see such selective enforcement or undue restrictiveness. It is true that the prosecutor pleaded with the Court to admonish and control petitioner. And it is true that the Court sought the prosecutor's comments and listened to them. But it is also true that the Court's treatment of petitioner was in response to her continual and persistent misbehavior.¹¹ In another case, the court's requirement of strict adherence to the ban on speaking objections, to take one example, might appear unwarranted; but the trial court must have the flexibility to approach each case individually. If counsel prove themselves unable or unwilling to abide by ordinary norms of conduct, then the court must have the discretion to tighten the courtroom procedures, so long as this is done even-handedly, proportionately, and with restraint.

11 Petitioner cites an occasion where the prosecutor told the court: "I'm suggesting you put some leather on [your warnings], that you draw a line that she shall not cross with impunity . . . These kind of sleazy, underhanded untrue, improper, unethical comments have no place in a court of law." (Respondent's Exhibit 26, Vol. VI, at 129). Petitioner represents in her briefing to this Court that the prosecutor's comment came simply in response to her innocuously worded objection to a prospective juror. (Petition at 7:19). Thus, at first glance, the prosecutor's comment would appear to clearly violate the Fair Trial Order's ban on derogatory statements. However, a complete review of the transcript reveals a different picture. Immediately preceding the prosecutor's comment, petitioner interrupted him and accused him of yelling. The court disagreed, and petitioner persisted in insisting that the prosecutor was "yelling right into my ear." The court continued to disagree, and petitioner attempted to goad the court into calling her a liar. The court did not do so, but stated that petitioner had made a "false statement," after which petitioner said: "Thank you, your Honor. I appreciate that. And I will say now that I have running a tape recording of that." This of course, opened up a whole new aspect of misconduct. Without going into all the details here, suffice it to say that the prosecutor's accusations were not without cause, and that petitioner's presentation of the matter to this Court was again deceptively incomplete.

As a result of this Court's review of the record, there is but one conclusion that is manifest: Yes, Judge Horner became embroiled, not because of any prejudice toward petitioner, but because of his duty to his judicial office. How could any judge not become embroiled when counsel is screaming in open court and accusing the court of colluding with the prosecution? However, to say that the court became embroiled does not mean that the court lost its ability to act fairly and rationally. Indeed, Judge Horner used a method of graduated discipline, beginning with warnings, moving to sanctions, and ultimately having to threaten terminating the defense's closing argument.¹² In conclusion, this Court rejects petitioner's accusation of judicial bias as unfounded and unwarranted in light of the actual facts of the case.

12 This is not to say that the court acted perfectly in every instance. Upon excusing the jury discuss petitioner's speaking objection (which preceded the first contempt finding), the court said in front of the jury: "Ms. Kallins — I think it's time we had a little hearing outside the presence of the jury." On paper, at least, this appears condescending. However, this Court does not exercise its habeas jurisdiction by sitting in judgment on the minor flaws and blemishes of other courts; rather, we are concerned with serious misconduct by petitioner worthy of criminal sanctions, and with her contention that the Superior Court engaged in equally inappropriate behavior, which it clearly did not. See, e.g., U.S. v. Engstrom, 16 F.3d 1006, 1011 (9th Cir. 1994); United States v. Bailey, 175 F.3d 966, 969 (11th Cir. 1999) ("occasional sharp comments were nothing more than the reasonable (and restrained) reactions of a trial court judge dealing with a difficult case"); U.S. v. Griffin, 84 F.3d 820 (7th Cir. 1996) (recognizing that trial judge became understandably frustrated with counsel, but rejecting characterization of judge as having become "personally embroiled" with counsel); Illinois v. Allen, 397 U.S. 337, 346-47 (19770) ("Being manned by humans, the courts are not perfect and are bound to make some errors. But . . . their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the . . . trial judge in this case. The record shows that the [trial] judge at all times conducted himself with that dignity, decorum, and patience that befit a judge.").

Nevertheless, a cautionary note is appropriate here. This case deals with the outer limits of attorney misbehavior. This opinion should not be taken as license to restrict aggressive and vigorous advocacy in the courtroom. In the heat of trial, voices will be raised, tempers may grow short, word choice may not be optimal. This is part of the territory of the adversarial system, especially when the stakes are high. Equally important is that room must be preserved for creative advocacy and the vigorous representation of unpopular individuals and causes,¹³ which should not be hindered by strictures on decorum. The use of the summary contempt power must be limited in a manner commensurate with its exceptional status wherein criminal sanctions are imposed without the provision of full due process protections.

13 As just one historical example, the Court notes the improper use of injunctions and contempt penalties to restrict the labor movement at the turn of the last century, which prompted the Supreme Court and the Congress to curtail such excesses by the trial courts. See Livingston. Wash. Law. Rev, at 359.

C. The Four Orders of Contempt

The Court will now proceed to evaluate petitioner's specific arguments with respect to each of the four orders of contempt.

1. The First Order of Contempt

The first order of contempt, discussed in detail in section II.B.1, supra, arose from petitioner's speaking objection as the prosecutor was attempting to refresh a witness's recollection. To summarize, the court dismissed the jury, reminded petitioner of the rule against speaking objections, and stated that he would not find her in contempt on the basis of her objection in court. However, during this colloquy between the court and counsel, petitioner "attacked the integrity. fairness and impartiality of the Court, made personal and derogatory descriptions of the Court," and "was literally screaming at the Court." (Respondent's Exhibit 1, Vol. I, at 5-6, 9) [emphasis in original]. This behavior included petitioner's statement to the court: "Your attitude toward what I do is as if I'm an eight-year-old child, with your helper, my probation officer, Mr. Jacobson [the prosecutor]. It's ridiculous . . ." (Respondent's Vol. I, Exh. 1, Attachment A at 6-7). Petitioner takes two approaches in her challenge to the first order of contempt: diversion and omission. Diverting attention from the actual basis for the ruling, petitioner focuses on the impropriety of the Superior Court's restriction on her speaking objection. However, the court clearly did not find petitioner in contempt on this basis. The court "simply remind[ed] counsel that speaking objections are strictly prohibited [and] to simply proceed." (RR Vol. I, Exh. 1 at 4).¹⁴ Petitioner conveniently omits any specific reference to her actual conduct which precipitated the contempt order. Rather, petitioner informs this Court that "a lengthy complaint to the court occurred" and that "[t]he comments, once again, were invited by the court, and are articulate, respectful, and well-taken." (Petition at 30:22-26). As repeated throughout the Petition, this characterization is fabricated without any reference to Ms. Kallins' actual conduct and without any citations to the record. Moreover, comparison of petitioner's characterization of the basis for the order with the actual transcript and the court's detailed order shows a wide chasm between fantasy and reality.¹⁵ It is simply hard to imagine that screaming at and berating the court can be characterized as articulate and respectful advocacy. See U.S. v. Rrapi, 175 F.3d 742 (9th Cir. 1999) (affirming trial court's order of summary contempt against defendant who cursed at jury during announcement of verdict).¹⁶

14 Petitioner's argument that the restriction on speaking objections is a violation of the First Amendment is a "red herring," since the order was not based upon counsel's speaking objection. Furthermore, the courts have recognized that certain limitations on counsel are valid and do not offend the First Amendment. See, e.g., United States v. Gomes, 177 F.3d 76, 79 (1st Cir. 1998), cert. denied, 528 U.S. 911 (1999) (court was well within bounds to require counsel to object without making additional arguments unless so requested and when counsel persisted in doing so, court did not commit reversible error by asking counsel to stop arguing in front of jury); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ("It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to 'free speech' an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal").

15 The Court does not mean to engage in hyperbole or mockery by characterizing petitioner's position as fantasy. However, it is petitioner herself who refers to the proceedings as a world of "Alice-in-Wonderland," where she "made every effort to conform to the rules of the Court below," but where "the rules kept changing." (Petition at 11:19-21).

16 For purposes of illustration, petitioner's conduct may be contrasted with an example of aggressive advocacy in which contempt is not warranted. In In re McConnell, 370 U.S. 230 (1962), the prosecutor had charged the defendant with conspiracy and other violations in an antitrust suit. The judge disallowed the conspiracy charge, and defense counsel refused to stipulate that the prosecution would have introduced evidence on conspiracy if it had been allowed to do so. Thus, to preserve his client's rights on appeal, the prosecutor insisted on asking questions in the presence of the jury concerning the conspiracy charge. The court repeatedly told counsel to stop that line of questioning, and the prosecutor stated that he would continue to do so until the bailiff stopped him, although he did then cease asking such questions. The trial court held the prosecutor in summary contempt, but the Supreme Court found that counsel had engaged in a good faith effort to present his client's case, and that the contempt power must be limited to "the least possible power adequate to prevent actual obstruction of justice, and we think that power did not extend to this case." Id at 236

While petitioner's conduct is, therefore, clearly contumacious, a second question arises regarding the propriety of the use of summary contempt procedures: Did petitioner's conduct, outside the presence of the jury, occur in "open court," as required by the Supreme Court in Pounders and previous decisions?

California law allows for summary procedures where the "contempt [is] committed in the immediate view and presence of the court, or of the judge at chambers." Cal. Code. Civ. Proc. § 1211(a). The Code is open to question both for what it includes and for what it omits. It includes conduct occurring in chambers, which would appear to be outside the realm of open court. However, as none of the conduct at issue in the instant case occurred in chambers, the issue is not presented and this Court will make no determination on this issue.

Even where the misconduct occurs in the courtroom, the Code seems to only require the presence of the judge, as it omits any limiting references to "open court," the "public," or the like. This leaves open the possibility that summary procedures under California law could be used for contemptuous conduct occurring in the presence of no one other than the judge. Again, however. this scenario is not presented by the instant case, and the Court makes no determination on this issue.¹⁷

17 In the interest of comity, and in recognition of the Court's jurisdiction being limited to the case presented, this Court is averse to ruling on the constitutionality of the California statute regarding misconduct occurring in chambers or otherwise in the exclusive presence of the judge.

The situation underlying the first contempt order in the instant case occurred after the jury was excused, and in the presence of the judge, the prosecutor, petitioner and his counsel, presumably courtroom staff, and perhaps witnesses and members of the public.¹⁸ Thus, the precise question facing this Court is whether the "open court" restriction on the summary contempt power covers situations outside the presence of the jury.

18 The record does not reflect whether anyone — such as family members of the defendant, victim, or witnesses, or other members of the public — were in the audience at the time.

Petitioner argues: "Many Federal cases have required that the offending behavior occur in the presence of the jury in order to rise to the level of threatening the judges [sic] authority." (Petition at 39:14-16). However, in all too typical fashion, this statement is followed by not a single citation. While neither Pounders nor any other authority revealed by the court's own research seems to answer this question directly, the Supreme Court does provide the reasoning for the "open court" requirement. The Court has explained that the summary contempt power protects the court's dignity and vindicates the court's authority when these attributes are challenged "'before the public.'" Pounders, 521 U.S. at 988, quoting In re Oliver, 333 U.S. 257, 275 (1948).

This, of course, leads to a second question: Who constitutes "the public?" The jury is arguably the most important element of the public in the courtroom, since the verdict is in the jurors' hands alone. If the jurors see the judge ridiculed without seeing an appropriate response, they are likely to take their own solemn duty less seriously. But there are other participants in the judicial process whose roles would be jeopardized by allowing the court's integrity and authority to be diminished. Witnesses must have some faith that the process they have been asked to engage in is run by a sense of fairness and decorum. Certainly the defendant must be given reason to believe that the process resulting in possible incarceration is governed by a neutral figure capable of ensuring fairness in both substance and procedure. Members of the general public, including the press, though not participating in the trial at hand, do have interactions with the judicial system in other cases as jurors, litigants, and observers, and we cannot dismiss the effect on their roles as active citizens when the integrity of the judicial process is diminished. Therefore, the Court finds that all of the behavior resulting in the four contempt orders occurred in "open court."

In sum, this Court finds no basis upon which to challenge the Superior Court's contempt order as being an unreasonable application of Pounders and other Supreme Court precedent, or an unreasonable determination of the facts. Therefore, the petition for writ of habeas corpus with respect to the first contempt order is denied.

2. The Second Order of Contempt

The second order of contempt, discussed in detail in section II.B.2, supra, arose from petitioner's complaint that the defendant could not see the witnesses as they testified. Again, petitioner was not found in contempt for her conduct in representing her client's interests, but rather for her subsequent hostile, snide, and offensive behavior toward the court. (RR Vol. II, Exh. 2)

Petitioner objects to the second contempt order on the basis that she was not given fair warning that such behavior would be punishable. (Petition at 31). Petitioner relies on the California Supreme Court's holding in Boysaw v. Superior Court of Los Angeles, 23 Cal.4th 215, 221 (2000): "When an order of contempt is based on the tone of voice used by the alleged contemner, the order must recite that he was warned his tone of voice was objectionable."

In its review of a habeas petition, this Court should not, and does not, act as a state court of appeal, and it is therefore not within this Court's purview to determine whether the trial court followed state law, except to the extent that such state law is coextensive with clearly established federal law as determined by the Supreme Court. Here, the Boysaw requirement of warning does not appear to be mirrored by any explicit Supreme Court holding. Cf. In re Ellerbogen, 72 F.3d 153, 158 (D.C. Cir. 1995) ("we have never held that warnings of any kind are a prerequisite to a summary contempt conviction").

Even if warnings were constitutionally required, this Court must disagree with petitioner's characterization of the facts. The Superior Court had already found her in contempt for similar outbursts directed at the court, and the court had admonished counsel repeatedly for precisely the kind of conduct at issue here.¹⁹ It is difficult to fathom that petitioner did not understand that this behavior would subject her to further contempt findings.

19 In Boysaw, the California Supreme Court held that a warning regarding counsel's tone of voice in speaking to a witness was not sufficient to support a contempt finding for counsel's tone of voice in speaking to the trial judge. Boysaw, 23 Cal.4th at 223 n. 2. However, in the instant case. most of petitioner's misconduct was directed to Judge Horner.

Nevertheless, petitioner argues that the court's warnings were not "contemporaneous," and that the most recent ones were made "an hour earlier." Again, petitioner provides no citation to the record. More importantly, petitioner provides no authority for the proposition that warnings, if required at all, must be made within such a narrow window of time; indeed, such a rule would be counterproductive. Cf. United States v. Dowdy, 960 F.2d 78, 82 (8th Cir. 1992) (warning given four days prior to contempt citation was sufficient to put counsel on notice and "qualifies as a clear order"). Petitioner also points out that she had apologized to the court for some of her past misconduct, as if the court's acceptance of her apologies had somehow served to erase the warnings. Moreover, petitioner's few examples of situations in which she apologized weigh lightly on the scale against the numerous occasions in which she was unrepentant or in which she followed her apology with further misconduct.

This Court finds no basis upon which to challenge the Superior Court's second contempt order as being an unreasonable application of Pounders and other Supreme Court precedent, or an unreasonable determination of the facts. Therefore, the petition for writ of habeas corpus with respect to the second contempt order is denied.

3. The Third Order of Contempt

The third order of contempt, discussed in detail in section II.B.3, supra, arose from petitioner's references to penalty or punishment during her closing argument. To summarize, the court had repeatedly warned counsel to avoid any references to penalty or punishment, starting with the Fair Trial Order and the hearing thereon, and continuing periodically during the trial.²⁰ (RR Volume III, Exhibit 3 at 5-6, 9-10) Nonetheless, petitioner asked the jury during her closing argument to reject the prosecution's suggestion that the jury, in petitioner's words, "should put a lot of weight on [defendant's behavior] and send him to prison or convict." When chastised by the court, petitioner claimed that the reference to prison had "slipped out," but the court refused to accept that explanation, and found that counsel had acted intentionally. On that basis, the court issued the third contempt ruling.

20 The relevant provision of the Fair Trial Order is based upon CALJIC 17.42, which states: "In your deliberations, do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict."

Petitioner argues that the reference to prison cannot be the basis for summary contempt because it did not permanently prejudice the prosecution. In Pounders, as discussed supra, defense counsel had been warned to avoid any reference to penalty, yet in two separate questions she asked the defendant on the witness stand whether he had been facing the death penalty or life without possibility of parole. Pounders, 521 U.S. at 985. The trial court held counsel in summary contempt, and concluded that her comments "permanently prejudiced [the] jury" and that it was a "prejudice that cannot be overcome." Id at 986.²¹ In affirming that ruling, the Supreme Court stated: "The trial court's finding that respondent's comments had prejudiced the jury — together with its assessment of the flagrance of respondent's defiance — support the finding of the need for summary contempt to vindicate the court's authority." Id at 990-991.

21 In Pounders, the trial court stated, before the jury rendered its verdict, that he believed that the jury was permanently prejudiced. Judge Pounders explained that the jury's knowledge that the defendant was facing a life sentence, along with its understanding from other testimony in the trial that the victim was a gang member, would lead the jury to conclude that "the person killed isn't worth that penalty, and so they are not going to find him guilty of the major charge, . . . which is murder, [and] they may not find him guilty of much at all." Pounders, 521 U.S. at 986-987.

Petitioner latches onto this statement, and argues that Pounders requires permanent prejudice to sustain a summary contempt finding. (First Amended Petition at 5). If permanent prejudice were the standard, the immediacy rationale underlying the justification for the use of the summary contempt power would dissolve, since the fact of prejudice could not be known, if at all, until the jury renders its verdict. The jury's verdict cannot be foreseen in the midst of trial or even during closing argument; and the impact of any given aspect of evidence or argument can rarely, if ever, be determined with precision. Thus, Supreme Court precedent makes clear that permanent prejudice is a sufficient, but not a necessary, element of summary contempt.

Along with Pounders, the Supreme Court decision in United States v. Wilson, 421 U.S. 309 (1975), is illustrative. In Wilson (which is cited with approval in Pounders), three individuals were accused of bank robbery. Two of these individuals pled guilty and then were summoned to testify. with immunity, against their co-conspirator. Despite the immunity, the two refused to testify, and the trial court held them in summary contempt. The Supreme Court affirmed the use of summary contempt in these circumstances, holding that the misconduct "disrupt[ed] and frustrat[ed] an ongoing proceeding." Wilson, 421 U.S. at 316. The Court noted that a significant obstruction of justice was evident, since the lack of testimony resulted in the prosecution being unable to present eyewitness evidence of one of the bank robberies, which led the trial court to grant a motion for acquittal on that charge. See Wilson, 421 U.S. at 312-13.²²

22 The Pounders Court also cited with approval Sacher v. United States, where summary contempt was used to address misconduct "'consist[ing] of breaches of decorum and disobedience in the presence of the jury of [the court's] orders and rulings,'" without any reference to prejudice. Pounders, 521 U.S. at 990, quoting Sacher, 343 U.S. at 5. However, the principal issue addressed by the Supreme Court in Sacher was whether a long delay between the contemptuous activity and the finding of contempt should bar the use of summary procedures.

As an example of a situation in which there was not a sufficient obstruction of justice to warrant summary contempt, one may look to the Supreme Court decision in In re McConnell, 370 U.S. 230 (1962). In that case, discussed supra, defense counsel adamantly persisted in asking questions of a witness in order to preserve the defendant's right to present the issue on appeal. The Supreme Court held that "before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice." Id at 234. Applying that standard to the facts of the case in McConnell, the Court stated that it could not agree "that a mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him can amount to an obstruction of justice that can be punished under the limited powers of summary contempt." Id at 235. The facts of McConnell are, of course, not the same as those in the instant case, and, indeed, the two cases depart most significantly in that the McConnell Court based its decision, at least in part, on the need for "lawyers [to] be able to make honest good-faith efforts to present their clients' cases." Id at 236.

While Pounders, Wilson, and McConnell are instructive on the issue of prejudice, none of these cases sets forth a hard and fast line of demarcation between conduct "[s]eriously prejudicing the jury" ( Pounders, 521 U.S. at 990) and conduct that is not sufficiently obstructive. Indeed, one can see from the scenarios in these cases that the existence of prejudice or the obstruction of justice is often more a matter of degree than an absolute.²³

23 In Pounders, for example, the obstruction was not so great as to prompt the court to declare a mistrial, and there is no indication of whether the court attempted to instruct the jury in an effort to cure the violation. Nonetheless, the court was rightly concerned about the jury being given specific information about the potential length of sentence.

Nonetheless, what becomes quite clear from a review of these cases and other Supreme Court precedent is that the misconduct must at least significantly obstruct the administration of justice. Therefore, this Court is concerned that petitioner was found in summary contempt for what appears to be a technical violation of the trial court's rule against the mention of penalty or punishment. See also In re McConnell, 370 U.S. at 236 (summary contempt is an extreme remedy "limited . . . to the least possible power adequate to prevent actual obstruction of justice").

In the instant case, the Superior Court found that petitioner's reference to prison during her closing argument "was made with the express purpose of creating, and that it did in fact create, prejudice in favor of her client which cannot be overcome." (RR Vol. III, Exh. 3 at 11) However, the court did not explain the nature of the prejudice any further than this.

The record reveals that the jury already knew that the defendant was being charged with rape. and that he had spent time in prison for past offenses. Therefore, it would have been a matter of common knowledge that conviction on the rape charge would result in a prison sentence. Furthermore, the prosecutor had already twice mentioned during his closing argument that the defendant had already been to prison for past rape offenses.²⁴

24 During closing argument, the prosecutor argued that the rape in the instant case had "occurred according to a predetermined plan," that evidence introduced at trial regarding prior crimes showed that the defendant knew he should not go into the victim's house, that "he knew it was a felony. He went to prison for it." (RR Vol. VII, Exh. 31 at 126) The prosecutor also argued: "There's no good faith reason to believe that [the victim] consented, not when you've engaged in the kind of behavior he has in the past, not when you acknowledge that you know that it's rape. Now when you go to prison for it, it's not a good faith mistake." ( Id at 127) Petitioner did not object to either of these references to prison, and the court did not admonish the prosecutor or make any comments to the jury about the references.
Respondent argues that the prosecution's references to prison are distinguishable from petitioner's. The prosecution, according to respondent, "was not attempting to sway the jury by referring to the possibility of the defendant's potential incarceration in the present trial. It is that circumstance — the natural reluctance a lay juror may have to be responsible for a defendant's potential lengthy incarceration — that petitioner was attempting to exploit." (Answer at 22:11-14).

Still, there is a difference between petitioner's intent to exploit the jury's "natural reluctance" (an assumption open to question)²⁵ and the realistic potential for her action to have such an effect. To be clear, the Court is not limiting summary contempt to "permanent prejudice," as proposed by petitioner, where one uses hindsight to determine whether the jury was actually affected. Rather, the Court places itself in the courtroom at the time of the misconduct and judges the potential or likely effect on the jury or on the proceedings as a whole. See, e.g., United States v. Seale, 461 F.2d 345. 370 (7th Cir. 1972) (test of contumaciousness of words spoken during court proceeding is their effect as understood at the time by those who heard them). Taking this perspective, the Court fails to see even the potential harm that could result from petitioner's comment. As stated above, the jury was being told nothing new. Additionally, there was no disruption of the court proceedings and neither the jury nor the public could perceive an assault on the administration of justice.

25 While the Court will not assume that this jury, or jurors in general, have a natural proclivity against taking responsibility for lengthy incarceration, the Court will not go to the opposite extreme either. On this point, the Court must admonish petitioner's counsel for the use of sarcasm in its argument, wherein petitioner states: "[W]hat jury would nullify a rape conviction and why? Perhaps in order to send the rapist to an unlocked facility, near to the juror's homes." (Petition at 18:18-20).

The harm in this instance, which the Court does not mean to downplay, was to the trial court's authority. Clearly, Judge Horner was justifiably frustrated and exasperated with petitioner's behavior, and he specifically found that in this instance counsel had lied about the penalty reference having "slipped out."²⁶ In fact, the record reflects considerable restraint by the Judge in refusing to be drawn into the fray of counsel's frequent disrespect and offensiveness.

26 This Court does not find that Judge Horner's conclusion that petitioner willfully intended to refer to penalty was unreasonable in light of the facts presented. 28 U.S.C. § 2254(d).

However, the third order of contempt was issued solely on the basis of the reference to penalty, and, despite the surrounding circumstances, this Court must address the order on its own terms. See In re Little, 404 U.S. 553, 554-55 (1972).²⁷ As an exception to the ordinary right to due process, summary contempt cannot be used to correct errors of counsel (even counsel who have tested the court's authority beyond the limit) that do not carry at least a significant risk of obstructing justice or prejudicing the jury.²⁸ Therefore, we conclude that the Superior Court's third order of contempt constitutes an unreasonable application of Supreme Court precedent. Under 28 U.S.C. § 2254 (d)(1), this Court therefore grants the petition for writ of habeas corpus with respect to the third order of contempt.²⁹

27 In Little, during closing argument a pro se defendant accused the trial judge of bias, and the court held defendant in summary contempt. Subsequently, as the sheriff was removing defendant from the courtroom, defendant called the judge a "M___ F___." The contempt order was based exclusively on the bias accusations. The Supreme Court overturned the contempt order, finding that defendant's accusations of bias did not "immediately imperil" the administration of justice, and that defendant's profanity must be "laid aside for the purpose of our decision," since it was not relied upon by the trial court. Little, 404 U.S. at 554-55.
In the instant case, had the contempt order included petitioner's continued disrespectful and confrontational behavior, this Court would be in a different position

28 Petitioner urges the Court to follow an unpublished Sixth Circuit ruling in Hanner v. O'Farrell, 142 F.3d 434 (Table), 1998 WL 136212 (6th Cir. 1998), which interprets and applies Pounders. The Sixth Circuit granted a habeas petition where defense counsel had been held in summary contempt for making a specific reference to penalty. Hanner, 142 F.3d 434. Specifically, the trial court had ordered counsel not to refer to penalty, yet defense counsel told the jury during closing argument that there would be a significant difference in punishment depending on the amount of LSD the jury would conclude that the defendant had sold. Id at *2. While agreeing with the trial court that counsel had disobeyed a court order, the Sixth Circuit found that counsel's explanation — that he believed the purpose of the order was to prevent the jury from learning that the lesser-included offense did not require mandatory imprisonment, while the indicted offense did — raised a reasonable doubt as to counsel's intent. The Sixth Circuit also questioned whether the trial court's finding of intent was sufficiently specific. Further, the court held that defense counsel's comment did not pose an "imminent threat to the administration of justice," since it did not provide the jury with any new information, and because the jury's verdict of guilt on the indicted charge showed that it was able to disregard the comment. Id at *5.
Although the Court herein reaches a conclusion similar to that in Hanner, the Court does so without reliance on Hanner for a number of reasons. First of all, this Court is not bound by Sixth Circuit precedent, especially where the cited decision is unpublished. See Ninth Cir.R. 36-3 (prohibiting the citation of "[u]npublished dispositions and orders of [the Ninth Circuit]"); Sixth Circuit Rule 28(g) (disfavoring citation of unpublished decisions in briefs and arguments before the Sixth Circuit unless "a party believes . . . that an unpublished disposition has precedential value in relation to a material issue in a case, and that there is no published opinion that would serve as well"). Second, with respect to counsel's intent, petitioner herein did not present a reasoned position, as did counsel in Hanner, but rather stated that the reference to penalty "slipped out." This explanation was rejected as a lie by Judge Horner, who was in a position to judge petitioner's credibility given his experience throughout the trial and his direct observation of counsel's actions and demeanor. Third, Ohio state law, which was applicable in Hanner, requires that the conduct pose an "imminent threat to the administration of justice." Id at *4, citing Catholic Social Servs. v. Howard, 666 N.E.2d 658, 661 (Ohio Ct.App. 1995). While this standard is permissible under Pounders, it is not the standard in California, and whether an "imminent" threat is required by the Supreme Court is open to question, as discussed above.

29 Respondent argues that certain of petitioner's claims were not exhausted in state court, thereby depriving this Court of habeas jurisdiction for those claims. However, respondent concedes that "[p]etitioner's express reliance on Pounders v. Watson . . . in her statement of issues for review [before the California Supreme Court] in his [sic] second petition [regarding the third and fourth contempt orders] . . . was presumably sufficient to alert the state court to the federal due process component of that petition." (Answer at 16:13-16). Since the grant of habeas corpus on the third order of contempt is based upon federal due process, as discussed above, respondent's exhaustion argument is, by its own terms, inapplicable, and this Court has properly exercised its jurisdiction.

4. The Fourth Order of Contempt

After resuming her closing argument, petitioner referred to the prosecution's attempt to "send him [defendant] away," and she told the jury that "you can't throw away a life," as discussed in full in section II.B.4., supra. The court concluded that these were thinly veiled references to penalty, and that they occurred shortly after petitioner had been admonished and found in contempt for the same violation. The court found petitioner in contempt, and warned counsel that he was considering terminating her closing argument, but allowed her to continue.

Petitioner then argued, in anticipation of the prosecution's likely rebuttal, as follows: "Mr. Jacobson I know is going to . . . say, first, they can't conspire. They can't all get their stories together. They cant conspire. We know that it can't happen. If that were true, no one would wrongfully on some police theory that was rigged go to prison but the other." Petitioner subsequently explained to the court that she was not referring to a potential prison sentence for the defendant in the instant case, but to prisoners in past cases who have been wrongly convicted based on frame-ups. The court found that such argument would be entirely inappropriate, and that it served to show petitioner's intent to discuss penalty.³⁰ The court thus found petitioner's reference to penalty intentional, and found her in contempt. Thus, the fourth order of contempt includes two separate incidents, the "can't throw away a life" comment, and the conspiracy theory comment.

30 It is not necessary for this Court to determine whether petitioner would be allowed to discuss the Innocence Project, Hurricane Carter, and the like, given the basis of the Court's ruling as discussed above. The Court notes, however, that such decisions are largely within the discretion of the trial court. Further, while petitioner submits authority supporting the allowance of argument concerning "matters of common knowledge," including the unreliability of accusations by children and forced confessions, and that convictions may be based on mistaken identity, petitioner fails to submit any authority to support the kind of references she intended to make in the instant trial. (Petition at 22-23)

This Court finds that the statement "you can't throw away a life" goes beyond the level of an innocuous reference to prison similar or analogous to the reference at issue regarding the third order of contempt. Rather, it strongly implies a severe sentence, if not a life sentence. As above, this Court defers to the Superior Court's determination of the implication of petitioner's statement and of her intent, which is evident on this record, and which this Court does not find unreasonable under the standard of 28 U.S.C. § 2254(d). In contrast to the third order of contempt, here the misconduct had the distinct potential to prejudice the jury and thereby to undermine the administration of justice by providing information, or at least an insinuation, as to the length of time defendant would spend in prison if convicted. Thus, finding no basis upon which to challenge the Superior Court's contempt order as being an unreasonable application of Pounders and other Supreme Court precedent, or an unreasonable determination of the facts, the petition for writ of habeas corpus is denied with respect to the fourth order of contempt.³¹

31 The Court has not addressed respondent's argument regarding petitioner's failure to exhaust her state court remedies with respect to the first, second, or fourth orders of contempt, based upon respondent's invocation of 28 U.S.C. § 2254(b)(2), which provides that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."

VI. CONCLUSION

For the reasons discussed above, and with GOOD CAUSE APPEARING, the Court hereby ORDERS that the Petition for Writ of Habeas Corpus is GRANTED with respect to the Third Order of Contempt, and is DENIED with respect to the First, Second, and Fourth Orders of Contempt.

Although this Court finds that the trial judge acted properly to control counsel's conduct during this particular trial, the Court is also well aware of the value of zealous advocacy to our system of criminal justice. The decisions the Court reaches in this order are not intended to discourage such advocacy, but rather are limited to the specific facts of this case. The order stands for no more and no less than that the specific behavior found summarily contemptuous here went beyond that of legitimate, zealous advocacy, and instead evidenced a disregard for the rules and procedures upon which the very functioning of our adversarial system of justice depends.

IT IS SO ORDERED.