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For Middlesex, Conn., Superior Court Judge Thomas V. O’Keefe Jr., a defendant’s profanity-laced outburst was the last straw. Dennis Higgins had been obstreperous from the start of his 2003 sentencing hearing on drug charges. After arguing that he didn’t plead to the charge he was convicted of, Higgins insisted he was getting “railroaded” and called his sentencing a lynching in “Crackerville.” When he yelled, “F___ you,” as the marshals led him away to serve a four-and-a-half-year sentence, O’Keefe’s patience ran out. Finding Higgins in criminal contempt of court, the judge promptly tacked on an extra six months to his prison term for using “profane and provocative” language. Affirming the judgment, the appellate court ruled April 26 that O’Keefe, who now sits in Waterbury, Conn., was well within his authority to assert the dignity of the court. Writing for a unanimous panel, Judge Thomas M. Foti rejected efforts by Higgins’ appellate attorney to use the defendant’s outburst to radically change Connecticut criminal contempt law. Senior Assistant Public Defender Neal Cone argued that the right to counsel should apply to all summary criminal contempt proceedings in which a defendant is at risk of imprisonment. Higgins was represented at the sentencing hearing by public defender Richard Kelley, who has since retired. The trial transcript doesn’t reflect whether Kelley was attempting to silence his client, and Cone said he didn’t know whether Kelley was able to represent Higgins in a meaningful way during the brief contempt proceedings. Relying on case law from other jurisdictions and from the U.S. Supreme Court, Cone urged the appeals court to find that due process and Sixth Amendment protections require the right to counsel where significant restraints of liberty may result. Focusing on the impact on the defendant — that his client was sent to prison for six months without a showing that he was represented by counsel or that he waived that right — Cone cited a Pennsylvania case that recognized the right to counsel if a defendant faces just one day in prison. He also relied on U.S. Supreme Court decisions that held criminal contempt to be a crime, requiring the right to a jury if the term of imprisonment was greater than six months. But the appellate court adopted the reasoning of Assistant State’s Attorney Michele Lukban. Focusing on the insult to the court and the need for immediate vindication of the court’s authority, the appeals court observed it was bound by state Supreme Court precedent clearly holding that summary criminal contempt proceedings are not “criminal prosecutions” that trigger constitutional right to counsel requirements. To Cone, giving a defendant the right to confer with an attorney wouldn’t change the “summary” nature of the proceedings. The judge could deal with the insult to courtroom decorum by removing the defendant for a short time, he suggested. Summary doesn’t mean “immediate” but instead refers to a stripped-down proceeding, Cone explained. Standing before a judge to face criminal contempt charges is perhaps the time when a person needs an attorney most, he maintained. “The judge becomes the witness, the prosecutor, the adjudicator and the executioner,” Cone said. “Who stands with the defendant? No one.” Noting that the issue hasn’t been squarely addressed in any Connecticut state court decision or by any federal court, Cone said that he most likely will seek certification for appeal from the state Supreme Court.

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