People v. Holmes , 1998 Colo. J. C.A.R. 1529 ( 1998 )

Judge NEY,

dissenting.

Because I conclude that the defendant’s conduct is not proscribed by definitions set forth by the recently adopted C.R.C.P. 107(a)(1) and (2)(revision effective June 15, 1995), I would reverse.

The power to punish a person for contempt, especially where there is no improper intent present, should be exercised with caution after due deliberation, and only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. Conway v. Conway, 134 Colo. 79, 299 P.2d 509 (1956). That power is not designed to protect a judge’s own dignity, but rather to protect the rights of litigants and the public. It should be invoked only when the judicial process has been seriously affronted or disrupted. See People v. Ellis, 189 Colo. 378, 540 P.2d 1082 (1975).

The Supreme Court has held that the use of the word “chicken-shit” cannot constitutionally support a conviction of criminal contempt when it was not directed at the judge and did not constitute a threat to the administration of justice. Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). See also In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972)(trial courts must be on guard against confusing offensives to their sensibilities with obstruction to the administration of justice). See also Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995)(contempt for using “bullshit” after counsel had been warned not to use inappropriate language set aside).

In a study of 150 epithets, the term “bullshit” has been found to be near the bottom of the list of offensiveness (135), and even less offensive than “chicken-shit” (126). T. Jay, Cursing in America: A Psycholinguistic Study of Dirty Language in the Courts, in the Movies, in the Schoolyards, and on the Streets 148 (1992).

Here, while I do not condone defendant’s behavior, I conclude that the trial court abused its discretion in finding him in direct contempt. Despite the court’s initial finding that Holmes’ comment caused an obstruction of justice, I find no support for that nor any other ground defined by C.R.C.P. 107(a)(1) in the record. And, the comment was not so extreme that a prior warning from the court was not required. While defendant’s choice of language to express his frustration with the prosecution was inappropriate, that alone is insufficient to support a finding of contempt.

Accordingly, I would reverse the judgment.