Judge spurns attempt to toss contempt fine

Lawyer disobedient in trial, he says

Pulaski County Circuit Judge Wendell Griffen on Tuesday rejected defense attorney Bill James’ challenge to the legality of the $25,000 fine the judge imposed upon him for breaking Griffen’s rules in the manslaughter trial of fired Little Rock police officer Josh Hastings.

Hastings is accused of wrongly killing 15-year-old Bobby Joe “Weedy” Moore III in August when Hastings, investigating car burglaries, shot into the car that the teen was driving. Hastings was fired from his job in part because of the shooting. His week-long trial ended with a hung jury Sunday, and Griffen capped the proceedingsby holding James in contempt for 10 violations of the judge’s limits on questioning two teenage prosecution witnesses.

“He deliberately engaged in a course of conduct that violated the court’s ruling on multiple occasions,” states Griffen’s 12-page Tuesday order. “Beyond question … Mr. James engaged in the disobedient conduct pursuant to a calculated defense strategy. Despite knowing the court’s ruling, Mr. James defied it persistently, deliberately and inexcusably.”

Griffen imposed a fine of $2,500 per occurrence, saying James had broken the rule in his opening statement, his closing argument and eighttimes while cross-examining Keontay Walker, 17, and Jeremiah Johnson, 15.

An 11-page Monday motion by James’ attorney Jeff Rosenzweig, challenged the sanctions on five points: It argued that the size of the fine exceeds legal limits, disputed that the penalty can be imposed without a hearing, complained that Griffen did not give James acceptable notice that the attorney had violated the judge’s orders, claimed that state law restricts such a punitive action on a Sunday, and disputed the judge’s rationale for imposing the rule, which limited how James could invoke the teens’ juvenile criminal records.

James has no legal basis to challenge a contempt finding on the grounds that the judge’s order might be wrong, Griffen’s refutation states.

“Mr. James cites no authority from any jurisdiction, let alone Arkansas, that supports the idea that a lawyer can avoid sanctions for contumacious conduct by claiming that he disagreed with court rulings,” Griffen wrote. “Disagreement with a court ruling is no excuse for disobedience and disrespect for the rule of law.”

The teens, both of whom were in the car with Moore when he was killed, were on juvenile probation at the time of the slaying, and James argued that he should be able to cross-examine them about their backgrounds. The judge twice refused him, saying juvenile criminal records are typically barred from disclosure.

But Griffen relented on the day before testimony began after James argued that a 1974 U.S. Supreme Court ruling allowed limited questioning of a child witness about his juvenile record. Under that high court holding, Davis v. Alaska, the judge ruled, James could invoke the teens’ juvenile adjudications, but only to show that the boys’ criminal history made them susceptible to pressure by police and prosecutors to incriminate Hastings.

Griffen’s ruling states that he was clear and emphatic that the limits he placed on cross-examination barred the defense from portraying the teens’ criminal past as character evidence. The judge also refutes James’ claim that he did not know he was breaking the rule and was not given appropriate notice of that transgression. Griffen notes that - during the defense opening statement Wednesday when prosecutors brought the lapseto the judge’s attention - he told James he was in “direct violation” of the order and that James was being held in contempt.

“The notion that James did not know, had no way to know or should not be treated as if he knew about the court’s ruling is, simply put, stunning,” the judge wrote. “The record in this case contains abundant evidence that Mr. James received timely and clear notice that his conduct violated the court’s bench ruling on June 18. Even more clear and abundant is the evidence that Mr. James defied the court’s ruling at his first opportunity - during his opening statement - and that he continued to defy it after the court held him in contempt. The claim that he didn’t know what the court ruled or didn’t know he was disobeying the court amounts to a brazen misstatement.”

Arguments that Griffen didn’t have authority to sanction James on a Sunday or that the size of the fine is illegal also have no merit, the judge ruled. In denying James’ request for a hearing on the sanctions, the judge said the attorney should have asked for one when he knew he was in trouble.

“Perhaps even more telling is the fact that James at no time ever requested an opportunity to be heard or offer a defense for his … conduct,” the judge wrote. “James never attempted to address the court about his conduct.”

James can appeal Griffen’s sanctions. An analysis of Arkansas’ appeal and supreme courts published in 2007 found that judges in those higher courts uphold 18 percent of contempt sanctions - four out of the 22 times contempt sanctions were issued - compared with a nationwide rate of 32 percent. The findings by Griffen’s colleague, Circuit Judge Tim Fox, were presented in the University of Memphis Law Review.

Fox’s study found that nationally about 30 percent of contempt cases that imposed fines were upheld on appeal, but the rate declines in proportion to the amount, with fines of more than $1,000 being upheld 14.7 percent and fines of less than $1,000 upheld at 30.7 percent.

A former Arkansas Court of Appeals judge of 13 years, Griffen was elected to circuit court in 2010 and has twicefinancially sanctioned other attorneys for civil rule violations that were not contempt.

In January, he ordered the city of Little Rock to reimburse Heritage House Inn owner Gurmeet “George” Nerhan $2,398 in legal and travel expenses that Griffen said city officials owed for improperly dragging out a nuisance-abatement lawsuit against the South University Avenue motel. The city is appealing that order.

In May 2012, he ordered U.S. Attorney Chris Thyer and two of his assistant attorneys to pay $8,532 in legal fees to Garrett Sorensen; his wife, Katherine Sorensen; and her sister, Shannon Walters, after ruling that the federal prosecutors had improperly involved themselves in civil litigation in his court. Court records show that the money has yet to be paid, and Griffen rejected a request to reconsider the sanctions in March.

Northwest Arkansas, Pages 9 on 06/26/2013

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