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Is a defendant’s out-of-court criticism of the judge free speech or contempt of court?

State v. William A. Wisth, 2016AP1481-CR, 5/24/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

After Wisth, acting pro se, and the State picked a jury for his criminal case, the judge instructed the jurors “not to discuss the case with anyone.” The next day before trial, Wisch appeared by the public entrance to the courthouse with a sign and a stack of flyers that, in short, said “don’t trust Judge Malloy or Ozaukee County.” He tried to hand a flyer to a woman walking by, but she shook her head. She did not see what the sign or the flyers said. Turns out she was a juror. Uh oh.

The juror reported Wisth to the clerk of court, which led to the State filing a complaint and information labeled “contempt of court–disobey order.” On appeal, Wisth argued that his conduct was free speech and the State never presented evidence of the court order that he supposedly disobeyed.

The court of appeals noted that the body of the complaint and information charged all of §785.01(1)(b) (which includes obstruction of authority, process or order of the court), and Wisch never objected to them. Furthermore:

¶27 Here, certainly Wisth trying to hand a juror a communication that, among other things, accused the judge of being biased, had the potential to prejudice the State’s right to a fair trial.  Wisth’s actions could have resulted in a mistrial and, consequently, upset the “fair and orderly administration of justice.”  Feuerstein, 227 Wis. at 68; see In re Kading, 74 Wis. at 411 (noting that contempt “is not limited to instances of noncompliance with specific orders but has been used in many other situations in which judicial authority has been attacked or ignored” such as in the intimidation of witnesses).
¶28 It matters not, as Wisth argues, that the flyer “did not affect the juror or the trial.”  The result is immaterial, what is criminalized is Wisth’s intent.  Nor does it matter that neither the sign nor the flyer referred to Wisth’s “pending trial.”  The juror testified that she recognized Wisth, and the jury did not have to believe Wisth’s testimony that he did not recognize her.  Rather, the jury could have inferred that Wisth, who had been representing himself and would have been involved in the selection of the jurors, did recognize the juror, just like she recognized him.
¶29 Alternatively, the jury could have found that Wisth’s actions obstructed the authority of the court because, as the juror testified, the court instructed her and Wisth “not … to talk.”
¶30 Finally, Wisth’s conduct was not protected under the First Amendment to the United States Constitution.  See Remmer v. United States, 347 U.S. 227, 229 (1954) (“In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.”); see also Turney v. Pugh, 400 F.3d 1197, 1202-03 (9th Cir. 2005).

Wisth’s briefs present the lead issue as “whether the contempt of court conviction violates his right to free speech” and offers a substantial supporting argument citing  State ex rel. Attorney Genl. v. Circuit Court of Eau Claire Cty, 97 Wis. 1, 72 N.W. 193  (1897);  Craig v. Harney, 331 U.S. 367, 376 (1947); and  Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 829 (1978). The court of appeals gives the issue short shrift by dismissing it with just 2 sentences in the penultimate paragraph of its opinion and by ignoring all of the free speech cases that Wisth cited.  This case raises a provocative First Amendment issue. The court of appeals pretends that it doesn’t.  Remmer, the main case it relies upon, didn’t involve free speech or the First Amendment at all.

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