Rarely do I use epithets in my posts.  It’s not because I don’t know them, or that they make my eyes burn.  It’s that they are unnecessary to make the point.  That is, unless the point is about the use of an epithet.  And so, this post is about a defendant who said to Judge Henry Kennedy, Jr., following his sentence, “Fuck, y’all.”

Some suppose that judges in federal courthouses have tender ears.  Perhaps that’s true, as they live insulated lives where people don’t say such things to them.  But they weren’t always judges, and there stands a decent likelihood that they’ve heard such foul language before.  That a person being sentenced reacts, well, poorly to the decision shouldn’t come as a complete shock.  That a person being sentenced uses foul language to express himself similarly shouldn’t surprise.

Did he fail to show you the respect the robe demands?  Yes.  It’s true that this was disrespectful.  It was also pretty foolish, but then, people being sentenced are often the same people who do foolish things.  Laugh at it. You already sentenced him.  The business of the court was concluded.  Justice, as determined by you, Judge Kennedy, was done.  Be a big judge.  The outburst caused you no harm.

Still, you held the defendant in contempt and summarily sentenced him to an additional year, reduced on appeal to six months, to be served on the back end of his 29 year sentence. Oh, you showed him who has the power.

Judge Karen LeCraft Henderson of the D.C. Circuit must also have tender ears, for she wrote for the majority  affirming the imposition of an additional 6 months for contempt.

A federal court is empowered to punish criminal contempt by fine or imprisonment. 18 U.S.C. § 401. Criminal contempt includes “[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” Id. § 401(1); see also Fed. R. Crim. P. 42(b) (“Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies . . . .”). Criminal contempt requires: “misbehavior of a person, in or near to the presence of the court, which obstructs the administration of justice, and which is committed with the required degree of criminal intent.” United States v. McGainey, 37 F.3d 682, 684 (D.C. Cir. 1994).

All true, from that prissy legalistic perspective that means nothing and justifies anything.  So what? The defendant was sentenced.  Done. He was angry. Is that a shock?  He expressed it poorly. So what? Judges are supposed to be a bit bigger than that.  Big boy judges can hear the word “fuck” without going nuts.  Big girl judges too.  Just as my eyes won’t burn, neither will your ears. 

And yet, there’s a wrinkle.  The story of fuck y’all broke at the Blog of Legal Times in a post by Mike Scarcella.  

The appeals said the outburst—the defendant uttered “F–k, y’all” in open court—is enough to sustain a contempt conviction.

It was picked up by Nathan Koppel at the WSJ Law Blog.

At issue in the case is none other than the F-bomb. At a criminal sentencing hearing last year, a defendant (who was not identified in the opinion) evidently was displeased about the sentence he received, exclaiming in court: “F*** y’all.”

Neither could bring themselves to spell out the word “fuck.”  Not mention it in front of a judge, which would certainly have been inappropriate, but merely spelling out the specific word that was the subject of the decision.  When the blawgosphere is too prissy to spell out the word, can we fault the tender sensibilities of judges for putting a man in prison for an additional six months for uttering the word?

Doug Berman didn’t miss the irony.

Because the blogosphere has a decorum standard much different than the courtroom, I am amused and a bit annoyed that the WSJ Law Blog was unwilling to spell out the work fuck in its report here.  As the prior sentence reveals, however, I am not a big believer in word taboos.  Sticks and stones and all that… 

Personally, I am not nearly as troubled by the use of a naughty word in the courtroom as I am by the fact that my federal tax dollars are now going to be spent housing a guy for another six months simply because he said fuck in a courtroom.  But I may be full of shit and commentors should feel free to tell me to piss off in the comments.

Doug is a far funnier guy than I give him credit for.   Jeff Gamso similarly drives home the point, though with his usual thoughtful legal analysis so that his rampant use of epithets will not be wasted.

Since the anonymous defendant in DC didn’t say “Fuck y’all” to the judge until after he’d been sentenced, the proceedings were over, and no other court business was going on, he could neither have intended to obstruct justice nor actually have obstructed it.  There was, he said, no “actual obstruction of justice” so he couldn’t be held in summary contempt.  

Ah, what a foolish grasshopper.

Henderson explained for the court, issuing her own “Fuck you” to the anonymous defendant.  SCOTUS didn’t mean what it said in McConnell.  A sufficient insult obstructs justice even when justice isn’t obstructed.  And “Fuck y’all” is sufficient.

But the loop wouldn’t be complete until the school marm of propriety drives home the only really important point.

Is the extra six months really punishment?  Defendant might think so 29 years from now, if he is still alive, but it probably doesn’t seem like much now.

Kurt Scheidegger, a little ray of sunshine, who might not spell out the word “fuck,” but would clearly spell out the bright spot that chances are good the defendant will die before serving the six month sentence.