Don’t Flip Off Your Judge : Things Not to Do

Penelope Soto at First Appearance

Penelope Soto at First Appearance

Don’t cuss out a judge, either, as a Miami woman found out yesterday at her First Appearance / bond hearing. After 18 year-old Penelope Soto’s cavalier demeanor caused the judge to refuse to allow her out on supervised release, she responded to the $5,000 bond with an “adios” that the judge apparently found sarcastic. He called her back up and doubled her bond. Oops. Except then she makes the greater mistake of flipping him the bird and shouting the “F” word at him. Double oops. Judge Jorge Rodriguez-Chomat found her in direct criminal contempt, and sentenced her to 30 days in jail on the spot.

I missed this when it went around yesterday, but I want to add my 2 (or 3) cents on it. First, the judge was correct to hold her in contempt. It happened directly in front of him, so it was properly handled as a summary proceeding for direct contempt. He could have given her up to 6 months in jail upon a finding of guilt.

HOWEVER, he should have given her an opportunity to “show cause” why she should not have been held in contempt. Before a judge can hold someone in contempt, he has a duty under the Criminal Procedure Rules to inform them of the accusation, and to allow them a chance to show cause why she shouldn’t be held in contempt. I don’t think anyone would argue that his bare question, “Did you say F***,” is sufficient to meet this statutory requirement. Additionally, she should have been given the opportunity to present excusing or mitigating circumstances. By failing to follow the procedure, the judge violated her rights. Two wrongs do not make a right.

Secondly, Ms. Soto certainly appeared under the influence of whatever substance she had imbibed before getting arrested: probably the Xanax for which she is facing criminal charges. Also, such intoxication would be an excusing or mitigating factor that she should have had the opportunity to present.

Thirdly, someone on Facebook posed a question whether the judge properly increased her bond. Short answer: no. There are specific statutory considerations that a judge is to consider when setting bond. Those factors were considered when he set the bond at $5,000. The fact that she said adios when he finished dealing with her case, even though she said it sarcastically, did not give him legal grounds to increase that bond. He certainly did not make any findings on the record to justify such an increase. Rubbing him the wrong way does not lawfully allow him to raise her bond after it has been set. That said, her response to his illegal bond increase was not lawful either. Her wrong did no right his wrong.

Finally, it occurred to me that the are First Amendment ramifications. Can someone be held in contempt for speech, especially when that speech is directed at a government official? I was curious enough to do some research, and Florida Courts have found that profane language in court can be punished as criminal contempt if the statements insult the judge or degrade the dignity of the court. See Martinez v. State, 339 So.2d 1133 (Fla. 2nd DCA 1976). Apparently they would consider such statements an exception to the First Amendment, akin to fighting words. Merely shouting an expletive is probably not enough, without some intent to obstruct the administration of justice, which is highly unlikely since she was not even in the courtroom, walking away from a video camera. Judge Altenbernd of the Second District Court of Appeal wrote an extremely thoughtful and detailed opinion on a case with very similar facts to this one, Woods v. State, 987 So.2d 669 (Fla. 2nd DCA 2007). It’s worth a read if this blog entry intrigued you, as are most of Judge Altenbernd’s written opinions.

Ed: This entry ended up being quite the novel. When I started writing it, I initially wrote that the judge was correct. However, as my curiosity grew, I am convinced that this case would not hold up to appellate scrutiny (either the contempt or the bond increase) due the violation of Ms. Soto’s procedural rights, and I’m not sure that it would hold up even if the proper procedures were followed in light of a close analysis of the facts. This likely won’t help Ms. Soto, who will have exceptional trouble selling her jewelry (like Rick Ross, as she described it), in time to get a lawyer and take action on the case before her sentence is already served.

http://www.nbc-2.com/story/20973545/bad-idea-flipping-off-your-judge

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2 responses to “Don’t Flip Off Your Judge : Things Not to Do

  1. The 1st protects her so long as she did not direct the profanity at the judge or the court? Adding an innocent “you” to the profane “F**K” is what would have created the criminal contempt in her case? Additionally, it’s a bit worrisome that a judge wouldn’t have thicker skin and that a simple “adios” would be so offensive. How do you prove sarcasm anyway?

    • You might be right- it may be as close of a question of how she phrased her F**k. There’s a famous case of a guy who wore an ‘F*** the draft’ jacket to court- see Cohen v. California here: http://en.wikipedia.org/wiki/Cohen_v._California

      The question probably should be, “was her conduct disruptive or likely to disrupt the proceedings”. Pure speech is generally protected.

      Regardless of her sarcastic tone, it was clear legal error for the judge to increase her bond in that circumstance.

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