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03/22/78 STEVEN A. SUSSMAN v. COMMONWEALTH

March 22, 1978

STEVEN A. SUSSMAN
v.
COMMONWEALTH



Suffolk. Petition for a writ of error filed in the Supreme Judicial Court for the county of Suffolk on December 17, 1976. The case was reported by Kaplan, J.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ. Hennessey, C.j., Concurring.

SYLLABUS BY THE COURT

Contempt. Attorney at Law, Contempt.

The opinion of the court was delivered by: Liacos

Except in cases of flagrant contemptuous conduct, a trial Judge should not exercise the power of summary contempt in the absence of a prior warning as to the conduct which would place the defendant in contempt. [697-698]

When summary contempt proceedings are invoked, a trial Judge should give the contemnor an adequate opportunity to defend or explain his conduct before imposition of punishment. [699]

A trial Judge erred in holding an attorney in criminal contempt without first giving him a proper admonition and warning and an effective opportunity to be heard in his defense. [699-701]

A summary adjudication of criminal contempt against an attorney trying a case was wholly unwarranted by the record. [701-702] Hennessey, C.J., Concurring.

This petition for a writ of error attacks a summary judgment of criminal contempt entered in the Superior Court against the petitioner, an attorney with the Massachusetts Defenders Committee. *fn1 The Commonwealth's answer admitted all the essential facts alleged in the petition but denied the allegations that the petitioner had been unlawfully adJudged in contempt. The Commonwealth also filed a motion to dismiss the petition in so far as it contained allegations that the petitioner was not contumacious and that there was insufficient evidence to support the Judge's ruling. A single Justice of this court reserved and reported the case without decision on the petition (including that portion of the transcript appended to the petition), the assignment of errors, the return of the Superior Court Judge, and the Commonwealth's answer and motion to dismiss. *fn2 We reverse.

The petitioner has been an attorney with the Massachusetts Defenders Committee since March, 1972. In September, 1975, he was appointed defense counsel in a jury trial of one Totton who had been indicted for rape and unnatural acts. *fn3 After the alleged victim testified that she was married and was living in Maine, the petitioner asked early in his cross-examination, "And who do you live in Maine with?" The Commonwealth objected to the question and requested a bench conference. At the bench conference, the Commonwealth explained that its objection was on the grounds that it was irrelevant with whom the witness was now living and that, further, defense counsel knew that the witness was presently living with someone who was not her husband. This colloquy between the Judge and the petitioner ensued:

The Judge: "What is the relevance, Mr. Sussman?"

Counsel: "Your Honor, I think an issue in this case brought up by the government is the girl's respectability."

The Judge: "You can't do that by particular episodes, reputation only."

Counsel: "I think the jury are entitled to know a little bit about the woman, your ...


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