Kurt's Trial : October 2nd, 1:30pm

[assawyer]

Lance or assawyer, perhaps you could respond to this:

As of Sam's case I looked up stuff on criminal contempt of court.  A point I  picked up is that although there can be a summary (on the spot) trial in front of the judge for "direct" (in his presence) contempt, and even though this is ancient common law stuff that predates constitutions and  legislatures and all that, still the defendant retains all of his state and federal constitutional rights, including the right to a jury trial if the circumstances call for it.  Somehow I have the notion in my noggin that a right to a jury trial kicks in if the penalty is 6 months or more, not sure if that is federal or state.  I don't have time to delve into it this morning, not sure when I will.

You are quite correct about the jury trial requirement for contempt lasting more the 6 months. Burke was required to give Kurt oral notice of the conduct Burke observed thought to constitute contempt and give Kurt an opportunity to speak in his defense. I don't have the ability to listen to the audio now, I will go back and give my impression if Burke complied with the requirements of Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, (1978), which I have attached, in which the Court held:

Direct contempts may be punished summarily. The word summarily as used in this context does not refer to the timing of the action, but to the procedure. Summary procedure dispenses with the issuance of process, service of complaint and answer, holding of hearings, taking of evidence, listening to arguments, filing of legal memoranda, submission of findings and all that goes with a conventional court trial. Sacher v. United States, 343 U.S. 1 (1952). The summary contempt power should be used only when the contemnor's conduct in the presence of the court is openly threatening the orderly procedure of the court or publicly defying its authority. Charles Cushman Co. v. Mackesy supra. The contemptuous behavior must constitute a threat that immediately imperils the administration of justice.

For direct criminal contempts to be punished summarily, the court must give the contemnor oral notice of the conduct observed thought to constitute contempt. The contemnor must be given an opportunity to speak in his defense. If the contemnor is found guilty the court may then pronounce sentence. The court must prepare, sign, and enter on the record an order of contempt, reciting the facts the court observed and which gave rise to the contempt. See, e.g., State v. Linsky, 117 N.H. 866, 379 A.2d 813 (1977). The court must open a separate numbered file entitled State v. (The Contemnor).

In the case at hand, the court had no request for a finding of criminal contempt. In any event the matter was an indirect contempt requiring proof and evidence before the court. To have properly treated this matter as an indirect criminal contempt, the court would have had to provide notice stating the time and place of hearing and the fact that the matter before the court was going to be a criminal contempt. The notice would have had to state the essential facts constituting the criminal contempt charged and allow a reasonable time for the preparation of a defense. The case should in all respects be treated as a misdemeanor; "the State must prove the elements of its case beyond a reasonable doubt." State v. Linsky supra. If indigent, the contemnor would, of course, be entitled to appointed counsel. The contemnor would be entitled to jury trial if the court intended to impose a sentence of greater than six months in the house of correction were the contemnor to be found guilty. Id.

Because criminal contempt is in fact treated the same as a crime, the right against self-incrimination applies. In re Neff, 20 Ohio App. 2d 213, 254 N.E.2d 25 (1969). This is distinguished from the right of allocution, which must be provided in a summary criminal contempt for direct contemptuous acts committed in the presence of the court; formal charges, right to counsel, and other procedural matters not being applicable because of the immediacy of the conduct and the need for prompt action by the judge before whom the contempt occurred. See Fed. R. Crim. P. 42(a). Essentially this matter should be clarified by superior court rule so that parties, attorneys and judges would be able to fairly administer, and distinguish between, criminal and civil contempt and direct versus indirect contempt. See, e.g., Fed. R. Crim. P. 42.

[SuJin]

I was there at the trial... All I will say is that it is terrible how much power one man is given by force. "contempt of court" means that he just shame-faced and peeved off the judge... Then again... with Burke that is not hard to do.

[Coconut]

He "gave" Kurt his "right of allocution"

And 180 days is just under 6 months. Coincidence?

[SuJin]

He "gave" Kurt his "right of allocution"

And 180 days is just under 6 months. Coincidence?

I think not. *fuming* I feel bad for my dear friend "Marylin", as we now jokingly call her. She wants her husband back... and we do too.

[RollingStone]

I think that more support at the jail in upcoming days and follow-up on the jail conditions would be a good start.

[curt]

By way of contrast it will be interesting to see the penalty against the New Castle police chief for stealing $8,600+ from a local aid fund.

[antijingoist]

By way of contrast it will be interesting to see the penalty against the New Castle police chief for stealing $8,600+ from a local aid fund.

Suspension with pay in the Bahamas? That'll teach him to get caught!

[assawyer]

By way of contrast it will be interesting to see the penalty against the New Castle police chief for stealing $8,600+ from a local aid fund.

Suspension with pay in the Bahamas? That'll teach him to get caught!

He resigned almost immediately after being arrested, according to the news accounts.  I saw on WMUR, that there is no internal investigation by the town of New Castle because of the resignation and there was no town funds, etc. implicated in the theft.

[russellkanning]

I think that a change in venue may be a necessity here.   

yea .... out of the jail and back home

[Mike Barskey]

Did Ian's audio have another version of Kurt being pushed over?

Yes. It was from outside the room through a closed door, but you can hear it clearly and plainly.

Can we get that posted if you get a moment?

Ian, may I post it or do you want it for a special purpose, or do you think it should be edited down further?

[curt]

I think that a change in venue may be a necessity here.   

yea .... out of the jail and back home

I just posted the latest newspaper article on the (former) chief in the thread about him.

[Mike Barskey]

I haven't heard back from Ian, but as he is against IP, I'm going to take a [very slight] risk and post the audio: http://files.me.com/mike.barskey/gbl7gd.mp3

[Sam A. Robrin]

Did Ian's audio have another version of Kurt being pushed over?

Yes. It was from outside the room through a closed door, but you can hear it clearly and plainly.

Can we get that posted if you get a moment?

Ian, may I post it or do you want it for a special purpose, or do you think it should be edited down further?

Yadra's currently working on some footage I shot, also.

[Coconut]

Yadra's currently working on some footage I shot, also.

Last time I heard that was regarding Kurt's Nashua pullover.

It never got posted

Hoping things are different this time.

[SuJin]

UPDATE!!!

I wanted to let you all know that Aubern and I saw Kurt today. He seems to be OK. He may or may not still have some neck/head/back pain (we were unable to talk to him about it.)

Aubern got a call this morning from a member of his family this morning with a request for some shoes (we don't have a land-line, so the call gets cut off after only one minute). She called the  CF (correctional facility) about the call for shoes and they said that he would need to request the paperwork in order to get shoes. She asked if he knew that he needed to ask and if they gave him the paperwork. They apparently will not and did not tell him he needed to fill out paper work in order to get a pair of shoes on his feet. (Which I think is utter BS)

Aubern and I went to the "CF" to ask about hand delivering a few letters and giving Kurt shoes. He was still not booked (that we know of). We weren't able to physically talk to him, but we did mouth words to him because he was locked in a "cell" behind the service window. He told Aubern that he loved her and missed her. We mouthed that we missed him and wanted him home. He made hand motions to tell us he was crazy. He also showed us how happy he was to have a Bible (apparently provided by the Gideons  ). Aubern held up the shoes (after talking to the man behind the counter) and mouthed "paperwork". Kurt rolled his eyes and then looked at Aubern and apologized to her for this.  Aubern and I didn't leave until the man behind the counter gave Kurt the paperwork for the "shoe request"  , which he did reluctantly.

I know that people are planning additional activism events in support of Kurt and they'll post them as they come.