On December 24, 2009, the ACLU of Eastern Missouri and the ACLU of Kansas and Western Missouri filed a friend of the court (amicus curiae) brief with the Missouri Supreme Court in support of lawyer Carl Smith’s Petition challenging his conviction, on August 5, 2009, of and his sentence to 120 days in jail for criminal contempt based on his appellate advocacy on behalf of clients in a grand jury matter.
Carl Smith practices law in Ada, Missouri. In the spring of 2008, Mr. Smith represented a client in a criminal matter pending in Wright County when a grand jury in Douglas County issued a subpoena seeking, among other things, Mr. Smith’s secretary’s notary log book and any affidavits she had notarized for Mr. Smith’s criminal client in the case in Wright County. Mr. Smith filed a motion to quash the subpoena, but the Circuit Court denied that motion. Mr. Smith then took the matter to the Missouri Court of Appeals sitting in Springfield. He filed a Petition for Writ of Prohibition in which he alleged an appearance of impropriety arising from actions of the circuit judge and local prosecutors in the grand jury matter.
Based on the statements Mr. Smith made in that obscure appellate brief, Mr. Smith was charged with and convicted by a jury of criminal contempt. The Circuit Court sentenced Mr. Smith to 120 days in jail on those charges, and Mr. Smith remains in jail in Ava, Missouri. The Circuit Court did not instruct the jury on the First Amendment limitations on the power of criminal contempt as applied to lawyer advocacy.
The United States Supreme Court has consistently held that the First Amendment right to freedom of speech limits the rights of courts to exercise their contempt powers over lawyers. In a series of cases dating back over fifty years, the Supreme Court has also held that, in order for the American system of justice to function properly, lawyers must have broad latitude to advocate on behalf of their clients. For instance, in In re McConnell, the Court stated that “[t]he arguments of a lawyer in presenting his client’s case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty.”
Because of the critical First Amendment issues involved in this case and because direct appellate review is not available from a conviction of criminal contempt, the ACLU of Kansas and Western Missouri sought and was granted permission to file a brief in support of Mr. Smith’s Petition for a Writ of Habeas Corpus. Doug Bonney, the Legal Director of the ACLU of Kansas and Western Missouri, said that “jailing a lawyer for four months based on two paragraphs of an appellate brief presents critical First Amendment issues. The harsh punishment will chill lawyers who seek to uphold their ethical duty to represent their clients zealously within the bounds of the law.”
