APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA D.C. Misc. Crim. No. 4348
Hunter and Weis, Circuit Judges and Miller, District Judge. James Hunter, III, Circuit Judge (concurring in part and dissenting in part).
Our consideration of this case is focused on the extent to which a trial judge may enforce his authority to insist upon an orderly and expeditious trial.
The appeal is from three separate findings of contempt imposed during the course of a prosecution for attempted escape from the Lewisburg Penitentiary for which the defendant Proffitt and one Bagley had been indicted.
From the very beginning of the proceedings, the defendant determined upon a policy of obstructionism in order to delay his trial. His strategy was not to engage in violent or outrageous conduct but to employ a type of passive resistance through noncooperation.
The campaign began with his arraignment on March 15, 1973 when Proffitt refused to enter any plea to the charges brought against him. Through counsel, he then requested the appointment of a psychiatrist, but when the consultation was arranged for the day before trial, the defendant refused to cooperate despite the recommendation of his lawyer.
The selection of jurors for the joint trial of Bagley and Proffitt was scheduled for July 3, 1973. Just before that process was to begin, Proffitt advised the judge that his case could not proceed because the psychiatrist had not made an examination. Furthermore, he stated that he wished to discharge his court-appointed lawyer and secure other counsel.
The court rejected both grounds for delay and refused to appoint new counsel because of the imminence of trial. When the defendant then announced his intention to represent himself, the trial judge directed that Mr. Orso, his previous counsel, serve on a standby basis. The defendant stated that he would not talk further with his attorney.*fn1
The court then proceeded with impaneling of a jury. After the 28 prospective jurors gave brief biographical sketches in open court as was the practice in the district, Proffitt and counsel for Bagley were asked if they had any challenges for cause. Bagley's lawyer said he had none, but Proffitt refused to answer. The trial judge then asked the defendant again if he thought any of the prospective jurors should be disqualified because of their backgrounds, pointing out that the court of its own motion had already dismissed one person who had a relative employed at the prison. Defendant replied, "I don't feel that I wish to pick a jury" and said the clerk could do it. The trial judge then warned the defendant that if he did not answer the question, the court would consider a contempt action and that it had the right to impose a jail sentence of up to six months and a fine of $500.*fn2 The defendant made a number of evasive statements, purported not to understand, but did not answer the direct question.
In order to fill the vacancy caused by the dismissal of the one juror, another was called. When asked if he had any objection to this juror, Proffitt again refused to cooperate and said that he would not pick the jury.
After the twelve jurors were selected, the trial judge then found Proffitt in criminal contempt and sentenced him to 30 days imprisonment.
Selection of alternate jurors then commenced, and the defendant was asked if he had any objection to those who had been interviewed. Proffitt claimed that he had not been listening, and the judge then requested the prospective alternates to repeat the data which they had previously given.
Again the judge repeated the question and warned the defendant that he might be held in further contempt for failure to answer. Proffitt continued his evasive tactics and did not respond to the direct question. He was then found guilty of a second contempt and sentenced to a consecutive sentence of 45 days imprisonment.*fn3
Before testimony commenced, a motion for severance was made by the co-defendant Bagley on the grounds that Proffitt's conduct would be prejudicial to a fair trial. The motion was granted, the Bagley trial went forward, and Proffitt's was postponed.
On July 10, 1973, at the direction of the court, a psychiatrist was sent to the prison to examine the defendant to determine whether he was competent to stand trial rescheduled for a date some two weeks thereafter. Proffitt refused to submit to a psychiatric interview and instead presented to the ...