It’s not uncommon for a litigant to want to curse at a federal judge. From time to time, apparently, the impulse just can’t be contained.
Meet Robert Peoples. After a South Carolina federal district judge abruptly dismissed his pro se lawsuit last year, Peoples told a clerk that the judge should “get the f— off all my cases.”
The judge, Cameron McGowan Currie, wasn’t on the bench at the time of the outburst. Nevertheless, the next day, she initiated a criminal contempt case against Peoples, a crime that landed him behind bars for four months.
Perhaps not surprisingly, Peoples didn’t go away quietly. He’s appealed to the U.S. Court of Appeals for the Fourth Circuit in a case that explores how far a judge can go in curbing expression in a courtroom. A hearing in the case is set for September 21.
Parks Small, the top federal public defender in Columbia, S.C., is representing Peoples. As Small sees it, Peoples’ language didn’t reach the threshold of a criminal contempt charge, whose elements include misbehavior and the obstruction of the administration of justice. The words Peoples uttered, Small said in court papers in the appeal, didn’t delay any proceedings — the case had been just thrown out — or impose additional work or cost on the court.
“[H]e did not call Judge Currie these slang terms,” Small said. “Mr. Peoples merely expressed his unhappiness about Judge Currie’s decisions on his civil cases in terms, while offensive to some, that do not rise to the level justifying a contempt conviction.”
A team of assistant U.S. attorneys are backing Currie. They describe Peoples’ conduct as “improper, rude and uncivil.” The government lawyers argue that Peoples’ remarks were far from any spontaneous outburst. Peoples, prosecutors said, stormed out of court and returned a few minutes later to offer his thoughts on what just went down.
“His statements, made after warnings by the court, were so unnecessary and insulting to judicial authority as to constitute contempt,” prosecutors said in court papers. Currie declined to comment through a court official. An assistant U.S. attorney, Susan Hitt, did not respond to a message seeking comment.
Earlier in 2011, Peoples had pending cases in Currie’s courtroom about excessive-force allegations rooted in his time behind bars. In court papers, Currie described Peoples as habitually late for hearings. The judge at one point said she would throw out a suit if Peoples continued to fail to make it to court on time.
On the morning of April 12, 2011, Peoples showed up late, again. Currie dismissed Peoples’ case with prejudice, ending the trial before it began. He left the courtroom and returned moments later. A courtroom clerk alerted the judge about Peoples’ brief outburst. The next day, Currie demanded Peoples explain his behavior in an order to show cause.
Nobody disagrees that Peoples wanted Currie to take herself off other pending cases. But there’s a dispute over a different phrase that featured the same four-letter obscenity. Prosecutors contend Peoples also declared that Currie should “straighten the f— up.” Small, however, said Peoples could have used the phrase “straight the f— up.” The difference matters, Small said.
Basing his analysis on an urban-slang dictionary, Small said “straight up” would have been used to emphasize the truthfulness of Peoples’ earlier statement. Small acknowledged “straighten up” — in essence, to “behave” — could impart a threat.
Chief Judge Robert Conrad Jr. of the U.S. District Court for the Western District of North Carolina presided over Peoples’ contempt trial last September. (Peoples was an hour late for court that day, too, citing car trouble.) The evidence in the case: a garbled 57-second audio clip. The judge concluded that Peoples said “straighten the f— up.” Conrad said Peoples’ foul remarks and behavior did, indeed, interfere with the business of the court. The courtroom deputy who Peoples addressed abandoned the work she was doing to deal with him, the judge noted. The verdict: guilty of contempt.
Among the precedents Small cites in his defense is a 1966 decision by the Alabama Supreme Court that vacated a contempt conviction against a prosecutor who’d used profanity in a courtroom.
In that case, the prosecutor, Donald Brutkiewicz, learned that a judge had dismissed one of his cases. His response was a less-than-politic “son of a bitch.” A bailiff heard the remark and asked: “Who called the judge a son of a bitch?” Brutkiewicz, now 82, recalled his response in an interview last week. “I said, ‘Who called that son of a bitch a judge?’ ” (The story has a happy ending as it turns out: Brutkiewicz said that he and the judge, now deceased, later became friends.)
The Alabama Supreme Court called Brutkiewicz’s words “reprehensible and unworthy of a member of the bar.” But, the court said, the comment was not made “in court.” The judge wasn’t on the bench. “[W]e cannot use the vehicle of punishment for contempt to assuage the hurt feelings of an individual who has been personally abused simply because he occupies a position on the bench,” the court said.
Two lawyers in Houston, the late Fred Simpson and Deborah Selden, staff attorney for District Courts of Harris County, once wrote in a bar journal piece titled “The Proud and the Profane: Courts Condemn Cursing Contemptors” that literature critics are not alone in their distaste for the rise of vulgar language. “The federal judiciary,” the attorneys said, “shares this disapproval.”
Mike Scarcella can be contacted at firstname.lastname@example.org.