In Re the Citation Kinlein

Orth, J., delivered the opinion of the Court. RICHARD J. KINLEIN, the State’s Attorney for Howard County, was held to be in contempt by a two judge panel presiding in the Circuit Court for Howard County for the reason that he violated an order of that court prohibiting counsel participating in the criminal cause of State of Maryland v. H. Rap Brown, pending ⁶²⁷ before it, from making “any extrajudicial statement which is or tends to be prejudicial to a fair trial.” 1 He was fined $350 and costs. He appealed. We affirm the judgment.

I The case against Brown originated in Dorchester County. A true bill returned by the Grand Jury for that county was filed in the Circuit Court there on 14 August 1967. The indictment, signed by William B. Yates, II, the State’s Attorney for Dorchester County, consisted of three counts charging Brown with crimes committed on or about 24 July 1967. It presented by the first count that he “* * * feloniously, wilfully and maliciously did set fire to and burn, and cause to be burned, and aid, counsel and procure the burning of the Pine Street Elementary-School * * by the second count that he did riot, and by the third count that he did incite to riot.

The case was removed for trial to the Circuit Court for Harford County by order of 17 July 1968 (Mace, J.). By order of 18 March 1970 (Dyer, J.), it was removed to the Circuit ⁶²⁸ Court for Howard County. On 23 March 1970 the Circuit Court for Howard County issued the order with which we are here concerned. On 21 April there was a hearing on a motion challenging the sufficiency of the indictment.

The motion was granted as to that part of the first count which alleged that Brown aided, counseled and procured the burning. It was denied as to the remainder of the first count and as to the second and third counts. On 14 January 1971 the Montgomery County Sentinel, a weekly newspaper published in Montgomery County, Maryland, carried a news article under the byline of its reporter, Bob Woodward, in which were extensive quotations attributed to Kinlein about the Brown case, Yates and William H. Kunstler, an attorney representing Brown. Woodward had called Kinlein on 6 or 7 January to find out if Brown’s bail had been forfeited because Brown had not been seen since 7 March 1970.

Kinlein suggested Woodward call Yates, the chief prosecutor in the case. In a lengthy conversation Yates filled Woodward in “on some of the background on the bond, and the case, and what the charges were, and what happened and some of the dates.” During this conversation Yates was reported as saying, “I held the felony count to get him on the FBI Most Wanted List.” Woodward was “astounded and confused. I did not know the significance of it * * Woodward called Kinlein and asked him what Yates meant. What Kinlein said was set out in the news article.

He told Woodward that Yates had privately admitted the arson charge was “developed” in the event Brown skipped. Kinlein was “surprised” that Yates was now admitting the arson fabrication to the press. Kinlein said: “The fabrication of the arson charge is deplorable ... a complete perversion of the system. * * * Yates is an ass and you can quote me.” The article read, “Eastern Shore Bail Bond Service which is not licensed by the State put up $10,000 for Brown. John T. Moton is the bondsman.

His 1970 Cadillac and a motel which is mortgaged ‘to the hilt’ have a judgment placed on them for the $10,000 bond, according to Kinlein. The judgment ⁶²⁹ on the Cadillac and motel was made in Kinlein’s Howard County. The money would go to Dorchester County according to Kinlein who suspects it has not been collected because T got the impression Yates and Moton (the bondsman) are in cahoots.’ ” 2 Yates had mentioned that Kunstler “created the violence by his conduct.” Kinlein said, “I agree that Kunstler helped the violence, and Yates threw gasoline on it. Kunstler is a polished grand-stander, and Yates is an incompetent grandstander.” The article continued: “Suggesting that Yates stood for some sort of counter-revolution, Kinlein said that, ‘The counter-revolution is as dangerous as the revolution’. * * * Kinlein said that the charges against Brown were the only case he had seen in nine years which he would rather defend than prosecute.

Besides the arson charge, Kinlein said that inciting a riot is part of the ‘phony indictment.’ ” As a result of the Sentinel article Brown moved to dismiss the arson charge. There was an evidentiary hearing on the motion on 7 and 8 May 1971, Macgill, C. J. The court denied the motion. On 2 July 1971 the Circuit Court for Howard County ordered that Kinlein show cause why he should not be adjudged in contempt of court because the remarks made by him “are, or tend to be, prejudicial to a fair trial of the said pending case and were made in violation of the prohibition laid upon him by the said order of this Court.” The remarks designated by the order were “* * * certain statements to the effect that William B. Yates, State’s Attorney for Dorchester County, who had drawn the indictment in said case, had admitted that he had ‘fabricated’ a certain count in the indictment, and that ‘the fabrication of the arson charge is deplorable ... a complete perversion of the system’; and that he, Richard J. Kinlein, would rather defend than prosecute the case, ⁶³⁰ and that the charge in said indictment of inciting a riot was a part of the ‘phony indictment’ * * On 20 August Kinlein filed an “Affidavit of Defense”. He moved the dismissal of the citation in the Affidavit of Defense and by a separate motion.

At a hearing on 30 August 1971, a two judge court, Evans, J., and Melvin, J., ruled that the Affidavit of Defense was insufficient in law 3 and denied the motions to dismiss the citation. It also heard and denied a motion for a jury trial. The citation was heard on the merits on 18 and 19 October. On 20 October the court found that Kinlein was “guilty of contempt of Court for violation” of the order of 23 March 1970 and sentence was imposed.

II Ordinarily when there are restrictions imposed by a court on the uttering and publishing of extra-judicial statements relating to a pending case the ultimate question is whether the application of them violates the right to freedom of speech. Then the constitutional prohibition against abridging the freedom of speech and. the constitutional guarantee of a fair trial are in opposition. The problem of conflict in such circumstances between the two constitutional rights has been solved in this jurisdiction by the adoption of the clear and present danger doctrine, with its concomitant requirement of establishing prejudice, set out in Baltimore Radio Show, Inc. v. State, 193 Md. 300 , as the constitutional test. Here, however, Kinlein makes no claim that his freedom of speech was abridged by the order; he presents no question of freedom of speech vis-a-vis a fair trial. 4 Thus there is ⁶³¹ no problem of conflict and the clear and present danger doctrine is not invoked.

In this connection we are constrained to observe that we feel that the utterances of Kinlein were without the bounds of permissible free speech in any event. We do not construe the first amendment clause as affording protection to a public prosecutor’s statements which are false and inflammatory, threatening the fairness of a criminal trial in which he is to participate. In denying the motion to dismiss the indictment the lower court found the statements made by Kinlein to be false in material aspect. A transcript of the proceedings of that hearing is included in the record .before us, filed as defendant’s exhibit No. 1.

The question before the hearing judge was whether the arson count in the indictment returned against Brown “should be dismissed on the ground it was a fabricated charge and was made simply for the purpose of bringing the FBI into the case in the event that the defendant should not show up for trial.” The judge found the evidence insufficient to warrant the relief prayed. He made factual findings. He found that the evidence did not show that Yates “ever said that he had fabricated the charge of arson for the purpose stated or for any purpose.” He found that the words “fabricated” and “phony” were used by Kinlein in talking to Woodward. He found that the arson charge left in the indictment had not been “fabricated” by Yates.

He said: “It is difficult for me to believe, gentlemen, Mr. Kinlein’s version of what was said; if he had heard the extraordinary announcement which he said that he had heard, he has given, so far as I am aware, no reasonable explanation ⁶³² as to why he nursed this knowledge of an admission of an unlawful thing for such a long time, without confronting Mr. Yates with it, or divulging it to Mr. Garrity [Assistant Attorney General] or to any member of the Office of the Attorney General, or to the Court. When he did announce it, it was mentioned to a representative of the county newspaper in an adjoining county in the course of answering an inquiry about the forfeiture of a bail bond. I cannot speculate and will not speculate as to the reason or impulse which led to these circumstances.” At the contempt hearing Kinlein, testifying in his own behalf, admitted making, in substance, the statements as reported in the newspaper article. And on cross-examination he said that to the best of his “recollection, knowledge and belief” the words Woodward attributed to him were accurate.

But he admitted that Yates never told him he had “fabricated” the count, or that he had “developed” the count, or that the indictment was “phony.” Kinlein said he used those words because he thought they were “descriptive * * * of what had transpired.” In reviewing the judgment we “have the duty to make an independent evaluation of the circumstances.” Sheppard v. Maxwell, 384 U. S. 333, 362 . When a claim of a constitutionally protected right is involve'd, we must make an independent examination of the whole record, that is, an independent constitutional appraisal. State v. Hamilton, 14 Md. App. 582 , 592: Herbert v. State, 10 Md. App. 279, 287 ; Gardner v. State, 10 Md. App. 233, 245 . We have made an independent evaluation of the circumstances from the entire record before us.

We are in full accord with the findings of the judge at the hearing on the motion to dismiss and have not the slightest difficulty in concluding that the statements were false in material aspect. They were also inflammatory. Kinlein himself ⁶³³ recognized their inflammatory characteristics. Testifying at the contempt hearing he said he had not discussed what he thought was information exculpatory to Brown with the court, with Brown’s counsel, with the Attorney General, or with his colleagues in the local office of the State’s Attorney before making the statements to the press.

He said he had kept the information to himself because “the atmosphere in the court, in the community, was such that to volunteer such a statement, that is, that what I’ve said here, in this manner or any other manner, would have been inflammatory * * We have no greater difficulty in determining on our independent constitutional appraisal that the statements threatened the fairness of the trial. By the very nature of the utterances, false and inflammatory as they were, we think there was a reasonable likelihood that they would prevent a fair trial. 5 Ill Kinlein attacks the constitutionality of the order on two grounds. The first ground goes to the issuance of the order. He contends that “the record did not contain sufficient specific findings to pass such a blanket prohibition” and urges us to rule that an evidentiary hearing of record is required as a matter of law before such an order may issue.

Absent such a hearing he would have the order be invalid on its face. The second ground goes to the content of the order. He asserts the order is “indefinite, uncertain, and non-specific in its terms.” He gives for reason that the “import” of the words “prejudicial to a fair trial of the pending case” is “lacking in any ascertainable standard of proscribed conduct until voir dire at the trial itself.” He also questions the evidence, alleging that it was insufficient “to prove the gravamen of the offense” and his “willfulness.” Finally he con ⁶³⁴ tends that the hearing court committed two errors, each of which requires reversal, in denying him his constitutional right to a jury trial and his constitutional right to equal protection of the laws. In arguing his contentions Kinlein has fossicked opinions of the Supreme Court and state and federal courts throughout the United States.

The opinions of the Supreme Court, when apposite, are, of course, binding upon us. But we are not compelled to follow principles or rules of law enunciated by courts of other jurisdictions and we are not persuaded to follow those to which he refers us, even when on point, finding them in the main not in accordance with our views and the law of this State. We do not believe that the questions presented are as complicated, or the issues raised as complex, or the problems considered as knotty, as it appears from his arguments Kinlein would have them, but we will deal with the points he presents as we construe them. 6 ⁸ (a) In attacking the constitutionality of the order on the ground that there was no pre-issuance evidentiary hearing of record establishing its necessity, Kinlein accepts as “well established that ‘the courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences,’ Sheppard v. Maxwell, 384 U. S. 333, 363 (1965).” But he finds not well settled “The manner in which a trial judge may effectuate this mandate of the Supreme Court consonant with the Constitution of the United States.” We think it is a matter within the sound discretion of the trial court. The Supreme Court said in Estes v. Texas, 381 U. S. 532 , 540-541: “We have always held that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs.

Our approach has been through rules, contempt proceed ⁶³⁵ ings and reversal of convictions obtained under unfair conditions.” In Sheppard many of the prejudicial news items could be traced to the prosecution as well as the defense. The Court said that effective control of these sources was “coneededly within the court’s power * * *. More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulges prejudicial matters * * 384 U. S. at 361 . It set out practical measures to be taken “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial,” and stated, “If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered.” At 363.

It continued: “But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” In Baltimore Radio Show, Inc. v. State, supra, where our Court of Appeals reversed judgments against three broadcasting companies and an individual obtained in criminal contempt proceedings because broadcasts violating a restrictive order of the Supreme Bench of Baltimore City did not create such a clear and present danger to a fair trial as required by the constitutional test which it adopted and applied, it carefully pointed out: “We do not suggest that the courts lack the traditional ⁶³⁶ power to discipline officials who are part of the administration of justice,” noting that the question whether the courts can now deal with persons in cases “where the statements are inflammatory, false, or designed to intimidate, is not before us.” 193 Md. at 331 . 7 We are inclined to follow the guidelines of Sheppard , be they dictum or no.

The court below had the power and, under Sheppard , the duty, to take action to proscribe matters which threatened the fairness of the pending trial. 8 We reject Kinlein’s claim that an evidentiary hearing of record was a constitutional requisite to the validity of the order. He relies on four cases. In United States v. Tijerina, 412 F. 2d 661 (10th Cir. 1969), a hearing was held with counsel present for all parties at which the problem of pretrial publicity was discussed. The court stated its intent to make a restrictive order, furnished counsel copies of a proposed order, and later entered the order without any objection made.

The order covered the attorneys, the defendants and the witnesses. Two defendants were cited for violating the order and convicted of criminal contempt. Hamilton v. Municipal Court for the Berkeley-Albany Judicial District, 76 Cal. Rptr. 168 concerned a writ of prohibition to prevent prosecution for wilful disobedience of a pretrial order prohibiting discussion of the merits of prosecution for committing a public nuisance and unlawfully occupying college buildings.

The order ⁶³⁷ was issued at a pretrial hearing. In the Matter of Oliver, 452 F. 2d 111 (7th Cir. 1971), involved a policy statement by a court and an American Bar Association Canon. The order was not issued in a particular case and, of course, there was no pretrial hearing. Chase v. Robson, 435 F. 2d 1059 (7th Cir. 1970), arose from a sua sponte order prohibiting defendants and their attorneys from making any public statements in relation to a pending criminal case.

It was held in Tijerina that the order did not violate the defendant’s rights of free speech. The order in Hamilton was held to be justified. In Oliver the policy of court was declared null and void as violative of the first amendment. In Chase the order was stricken as constitutionally impermissible.

Kinlein concludes that since the orders in the two cases lacking pretrial hearings were voided, the determinative factor was the hearing. We do not see the cases that way. In Tijerina the court found that the order was based on a “reasonable likelihood” of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. It believed that “reasonable likelihood” sufficed. 412 F. 2d at 666 .

In Hamilton the court thought the order valid because it met constitutional standards which require such an order “to be formulated with narrow specificity so as to meet the particular evil sought to be regulated.” 76 Cal. Rptr. at 172 . The ruling in Oliver was predicated upon the fact that the policy adopted by the lower court contained a blanket prohibition against all extrajudicial comment by counsel in all pending cases whether tried before judge or jury without regard to whether such comment is or even could be prejudicial to the fair administration of justice. Such a policy could not stand, said the court, without making a mockery of the free speech guaranty of the first amendment. 452 F. 2d at 114-115 .

Oliver relied on Chase . In Chase there was some support for the order in the recommendations of the Committee on the Operation of the Jury System of the Judicial System of the United States, 45 F.R.D. 391 , 401-407 (1969). But even in criminal cases tried before a ⁶³⁸ jury, as in Chase , the committee limited its suggestion prohibiting dissemination of information to situations where “there is a reasonable likelihood that such dissemination will * * * prejudice the due administration of justice.” Id., at 404. The court felt that the order, “whether approached on its individual bases or construed as a whole, is devoid of sufficient findings as to satisfy either the ‘clear and present danger’ or ‘reasonable likelihood’ tests of a ‘serious and imminent threat to the administration of justice.’ ” It also found the order as written and applied unconstitutionally overbroad.