Judicial smack-down

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

-U.S. Constitution, First Amendment

I guess that U.S. District Judge Robert Gettleman  doesn't believe this applies to him

Gettleman.jpg

Judge Robert Gettleman

because it says "Congress shall make no law..." It doesn't say that judges can't prohibit a citizen from petitioning his government. 

Right, that's ridiculous. But it makes about as much sense as Gettleman finding TV pitchman Kevin Trudeau in contempt of court for asking his "fans"[a pitchman has fans?] on an Internet radio broadcast and his website to e-mail the judge with messages attesting to how his products have change their lives. The appeals court quickly stayed the sentence to hear arguments next week. Let's hope that the appeals court shows more sense.

One can come up with all kinds of analogies to demonstrate the ridiculousness of Gettleman's ruling. What if Trudeau asked fans to send snail mails to the judge? Can he request his fans to gather outside courtroom to demonstrate their support (in ways that people demonstrate in front of the U.S. Supreme Court in support of their decision)? 

The judge, of course, can turn off his e-mail, or have his clerk screen them. Their appeals doesn't even need to reach his eyes. He is in no way required to even take notice. Izf xany message contained threats, they should be dealt with appropriately. But the idea that anyone appearing before a judge can't request support from fellow citizens treads dangerously close to judicial over-reaching.

Yes, justice requires respect for the process and for the judges, lawyers and others that make it possible. The system cannot be subjected to the pressures of the mob. But Gettleman treads too close to constitutional guarantees by trying to imprison someone who, outside the courtroom, encourages  people to speak up in his defense.

Comments

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  • I guess, given the stay, we'll find out what Judges Posner and Easterbrook have to say about it. Also, I guess we will get an independent review of whether there were threats in the e-mail. There were certainly ex parte communications.

  • The two issues here are whether Kevin Trudeau's PROCEDURAL DUE PROCESS RIGHTS were contravened and his INTENT when he allegedly solicited his followers to contact the judge.

    First, since Trudeau's alleged act of CRIMINAL contempt was NOT in the judge's presence or constructive presence, Trudeau has a right to be properly CHARGED by the Government and to receive a TRIAL before being held in contempt. Did both of these PROCEDURES occur?

    Second, the important query here is Trudeau's INTENT. It appears that the judge is upset, because his email "crashed." That is not Trudeau's problem, unless the Government can ALLEGE and PROVE that was his INTENT. Additionally, for the judge to properly find Trudeau in criminal contempt for trying to improperly influence him, the Government must ALLEGE and PROVE that Trudeau knew or should have known that ex parte material communications with a sitting judge during ongoing litigation is strictly prohibited. Importantly, it is Trudeau's INTENT when he solicited his supporters that is analyzed, not whether his supporters followed through with his request. In other words, if the Government ALLEGES and PROVES that Trudeau knew when he posted his web request that ex parte communications with a sitting judge are prohibited, his act may properly be held contemptuous regardless if any emails were sent to or received by the judge.

  • In reply to KEVINJAYLONG:

    While I said let the 7th Circuit decide, how one can say this was not in the judge's presence is strange, unless you are saying that (1) the message to his supporters was outside the judge's presence, or (2) the judge received the e-mail outside the courtroom in chambers.

    I am also not convinced about your take on intent. It is well accepted in the law that you intended the outcome of your acts, not that you knew that you were violating the law.

    Go ahead, write your amicus brief to the 7th Circuit.

  • In reply to jack:

    Yes; Trudeau's alleged request to his supporters was made outside the Court's presence.

    You're understanding of INTENT is correct. However, in the instant matter, the Government must ALLEGE and PROVE that Trudeau KNEW OR SHOULD HAVE KNOWN that ex parte material communications with a sitting judge during ongoing litigation is strictly prohibited.

    Consider the following hypothetical: I ask you to send my ex an email saying I'd like to contact her (because she won't recognize your email address). You then decide to send her hundreds of messages, which reasonable people would find harassing. Does that mean my intent was to harass her? Answer: No, unless one can show that I knew or should have known that you would send all of those emails.

  • In reply to KEVINJAYLONG:

    1) I see that your name ends in B.S., not J.D., LL.B., or LL.M. And, as I demonstrated here, yesterday in response to whoever was convinced that she was unlawfully denied unemployment compensation after she quit her job, people playing lawyer on the Internet are not going to resolve the issue. Hence, my reference to you filing an amicus brief with the Seventh Circuit.

    2) You don't cite any statute or case law on what are the elements of criminal contempt in federal court. I could look that up, but my fee for legal research is $50 an hour.

    3) Your hypothetical is also off base. Let's take first degree murder. It has to be intentional and with malice aforethought. That only means that the defendant had to have thought about killing the victim for an instant before doing it. There is no requirement that the defendant knew that he was violating Sec. 9-1 of the Illinois Criminal Code (which, btw, has different elements than the malice aforethought formulation). In fact, the legal rule is that a mistake about the law is no excuse, translated into the maxim Ignorance of the Law is No Excuse. So, that Trudeau may not have known that what he was doing was a criminal contempt does not seem relevant.

    So, unless you cite some authority of the type described above, your argument means nothing. Of course, the only argument that means anything is before the Seventh Circuit.

  • In reply to KEVINJAYLONG:

    A couple of hours later, I realized that there was also a factual problem with your hypothetical. Trudeau did not ask his girlfriend to e-mail; he asked all of his subscribers or viewers of his website to do so. What you posit your girlfriend did may not be foreseeable, but the results Trudeau got from his followers were certainly intended, at least with regard to the volume of the e-mail, if not the threats.

  • In reply to jack:

    Bravo, jack.

    Mr. Long seems to be convinced that he is an expert in the law. He fails to understand that the court found Mr. Trudeau in contempt under Fed. R. Crim. P. 42(b), which permits a court to summarily dispose of a criminal contempt matter. He presumes that the contempt did not occur in the presence of the court. This, of course, is likely the issue that will be heard on appeal.

  • In reply to jack:

    The ALLEGED (What kind of attorneys are you!) contempt did NOT occur in the Court's presence or constructive presence. What happened here is simple: Trudeau is an unpopular defendant (as most defendants are), the judge got angry because his STAFF (NOT him) incurred 300 emails from Trudeau's supporters, and so he reacted emotionally (instead of professionally) by summarily finding Trudeau in DIRECT criminal contempt by improperly using Fed. R. Crim. P. 42(b).

    What the judge should have done was refer the matter to the U.S. Attorney to see if he wanted to prosecute Trudeau for INDIRECT criminal contempt.

    TexnAtty, for some reason that only she/he knows, feels the need to compete with me; let's be clear: There is no competition! To hammer this home, consider the following question: If you had to be charged with contempt, would you rather it be CIVIL or CRIMINAL and WHY?

    [J]ack illustrates her/his lack of understanding of criminal contempt when she/he asks me for the statutory elements. There are NO STATUTORY ELEMENTS, my friend! Indeed, the elements are based on the facts as ALLEGED by the Government. Additionally, there is NO LAW prohibiting ex parte communications; rather, it is an ethical issue for attorneys. Since Trudeau is not an attorney, he should NOT be expected to know this Rule. However, if the Government can show that he is aware of the Rule prohibiting ex parte communications, then Trudeau has a problem. Lastly, my hypothetical concerning my ex was on-point; you just were not able to follow it.

  • In reply to KEVINJAYLONG:

    I guess the BS stands for something other than what I originally said.

    I said statutory or CASE LAW. Also, I was able to follow your hypothetical and for the reason I said in the second post, it is not apropos.

    TexnAtty is right. I think we have discovered our latest Sherman Skolnick or Anthony Martin Trigona, except this one thinks he can convince us or anyone else on an internet bulletin board. I think I have said about 5 times that that is futile, if his aim is to do something for Trudeau. Maybe he can find the Seventh Circuit's e-mail address and spam them with his bogus legal argument lacking any authority.

  • In reply to KEVINJAYLONG:

    Mr. Long,

    Were you in the courtroom when the court announced its contempt decision? Have you personally reviewed all of the facts in evidence that formed the basis upon which the court found Mr. Trudeau in contempt under Rule 42(b) of the Federal Rules of Criminal Procedure? If so, please enlighten us to these facts. If not, then you have no basis upon with to form your legal conclusion.

    Neither jack nor I know all of the facts at issue. What both of us do know is that the court found, as a matter of law and fact, Mr. Trudeau in contempt pursuant to rule 42(b). This rule permits a court to summarily (i.e. without a formal charge, trial, etc.) dispose of a contemptuous action. In order for a court to apply rule 42(b) the contempt occur in the "presense" of the court. This is the issue being argued on appeal.

    On a final note, I would not be charged with contempt. I know the rules of the court and respect the integrity of the forum.

  • In reply to TexnAtty:

    TexnAtty:

    I have been basing my analysis on the "facts" as presented in the media and my knowledge of contempt.

    This matter is not complicated. I believe the judge here wanted to SCREW Trudeau QUICKLY; so, he conveniently and improperly applied Fed. R. Crim. P. 42(b) by finding him in DIRECT criminal contempt. Now, if the judge properly found Trudeau in INDIRECT criminal contempt, the case would have gone to the U.S. Attorney who would then decide whether to prosecute. If prosecution ensued, it would have been drawn-out, as Trudeau is entitled to have his constitutional rights safeguarded. But, if the U.S. Attorney opted not to proceed, then the judge would not have gotten his pound-of-flesh from Trudeau.

    Since it is quite clear that Trudeau's alleged act was committed OUTSIDE the judge's presence, I am confident that what happened in that courtroom, was, what I call, GAME-PLAYING. Judges, who want to GET defendants, frequently engage in this DISCUSTING, UNPROFESSIONAL, UNETHICAL, AND UNLAWFUL behavior.

  • In reply to TexnAtty:

    TexnAtty:

    As far as your thinking that following court rules, etc. secures yourself from being found in contempt, THINK again. If a judge wants to GET you, she/he will do exactly what GETTLEMAN did here. Sadly, there is no "... integrity [in this] forum."

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