Fifth Circuit To Lawyer: Answer The Damn Question
Who was right in this contempt of court charge?
Sometimes judges deserve sympathy from hectoring lawyers. Other times, lawyers are unnecessarily harassed for having the audacity to defend their clients. Or worse, lawyers are handcuffed for doing their jobs.
So who was in the right in this case? To set the stage, federal defender William Hersmesmeyer was fined $500 by Judge John McBryde of the Northern District of Texas. His offense, as described by the Houston Chronicle:
After giving an extended answer about what Hermesmeyer was objecting to, McBryde got a bit impatient with the attorney.
“I’ve asked the question again,” McBryde said. “Would you please answer the question either yes or no.”
Hermesmeyer gave another long answer, which irritated McBryde even further. Finally the judge held Hermesmeyer in contempt of court and fined him.
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If you’re playing “You Make The Contempt Call” at home, then the appearance of the yes/no binary should set off some red flags. Only a handful of times in the history of human civilization, the statement “answer the question either yes or no” hasn’t been a bulls**t trap to shut down nuance. Judges may appreciate a simple answer, but sometimes judging is harder than picking an entree.
But prudence requires that we review the transcript from the Fifth Circuit opinion before heaping scorn on this judge…
THE COURT: Okay. Let’s see. There were some—there were two objections filed, and I believe both of them were related to the possibility of a sentence above the top of the advisory guideline range. Did I read those correctly, Mr. Hermesmeyer?
MR. HERMESMEYER: Your Honor, I think they have more to do with legality of whether such a sentence would be permissible or appropriate.
Oh yeah, that’s a nuanced answer right there. Hermesmeyer was trying to explain that his objections weren’t so much about the possibility of a sentence above the range as much as an objection to the possibility of such a sentence altogether. That clearly escapes the strictures of the yes/no binary.
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So the lawyer got railroaded here, right?
Well, not so fast! What happened next?
THE COURT: I’m sorry, I was wondering if I’m correct in thinking that both of the objections have to do with the possibility of a sentence above the top of the advisory guideline range. What is the answer to that?
MR. HERMESMEYER: Your Honor, just what I said.
THE COURT: I’m not sure I understand how that answered my question. I’ve asked the question again. Would you please answer the question either yes or no.
MR. HERMESMEYER: Your Honor, I would stand on what I previously said. Thank you.
THE COURT: Mr. Hermesmeyer, you get very close to being held in contempt of court. Would you answer my question?
MR. HERMESMEYER: I have no further response, your Honor.
Upon further review, what the hell was that? Judge McBryde asked for clarification and the answer was “just what I said.” That’s unduly bitchy. Then the guy got a second bite at that apple and said he’d “stand on what I previously said.”
The whole bit about Judge McBryde asking for a yes or no answer is a red herring. This fine wasn’t about failing to answer in an unfairly simplistic manner, it’s about blowing off the honest efforts of the judge to figure out what’s going on.
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And, sure, there may be some history there. Maybe Judge McBryde had already made it clear that he wasn’t going to entertain these arguments, but there’s no reason not to try to explain it when that’s all the judge has asked.
THE COURT: Okay. Apparently you’re not going to respond. I’m ordering that you are in violation of the local rule. Let me get the exact number of it.
MR. HERMESMEYER: Your Honor, at this point I would move to withdraw from the representation of [the defendant] given the indications that the Court has made. [He] needs an attorney that’s not under the threat of civil contempt or whatever sort of contempt that the Court is indicating at this point.
THE COURT: I deny that motion.
If this was all some elaborate scheme to get out of the case, then “nice try.”
The Fifth Circuit agreed with Judge McBryde and upheld the fine.
More importantly, I’m picking up the Above the Law flag too. Reset the game clock.
(Full Fifth Circuit opinion on the next page….)
Texas lawyer learns the price of using too many words [Houston Chronicle]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
