Insult lands man in jail

Judge's sentencing in out-of-court incident is questioned.

Chuck Lindell
AMERICAN-STATESMAN STAFF
Tuesday, September 08, 2009

This summer, incensed by a ruling in a child-custody case involving his granddaughter, 69-year-old Don Bandelman followed the judge into a public courthouse restroom and berated him as "a fool," court records show.

District Judge Jack Robison, Bandelman said, angrily told him to leave.

Then Robison did something more problematic, raising questions about whether he abused his power as a judge. Robison directed bailiffs to arrest Bandelman and then sentenced the man to 30 days in jail for contempt of court.

There was no hearing, no notice of charges and no lawyer present for Bandelman, who was handcuffed and taken to the Caldwell County Jail to serve his term in a cell with 12 bunk beds and 23 far younger inmates. After the first two nights of near-constant noise and never-extinguished lights, the grandfather said, he was physically wrecked and doubted he could survive another 28 days in captivity.

Two days later, shaken but otherwise healthy,

he returned to his home about 10 miles northeast of Lockhart after Robison, facing inquiries from an Austin appeals court, amended his contempt order to time already served.

Robison, a district judge for 15 years, declined to comment through his court coordinator for this article.

Said Bandelman: "I don't guess I regret telling him what I did. It probably wasn't the smartest thing, but it was a (gut) reaction. I guess you have no freedom of speech with a judge."

On the contrary, though judges enjoy greater protection from ridicule than most Americans, that privilege rarely extends beyond the courtroom. And because the power to jail people on the spot, known as a finding of "direct contempt," is contrary to the constitutional guarantee of due process, it is strictly limited to avoid abuses.

"What ought to scare people is the ability to jail a citizen for 30 days when a judge just doesn't like his behavior," said Bill Allison, law professor and director of the University of Texas Criminal Defense Clinic. "The courts have kept, and continue to keep, this type of contempt very closely watched, very narrowly defined."

Bandelman's jailing was unusual because a finding of direct contempt is generally reserved for acts that:

• Take place during court proceedings, usually in the courtroom or jury room.

• Are witnessed by the judge.

• Disrupt court, impede the administration of justice or challenge the judge's authority.

In cases that meet the three criteria, swift and harsh punishment behind bars is often essential to protect the court's integrity, appellate courts have said.

But those accused of contempt for acts outside of the courtroom should be given notice of charges and be allowed to defend themselves at a future hearing, a standard that the U.S. Supreme Court set 84 years ago.

'Get me out of here' On June 23, Bandelman was waiting in the hallway of the Caldwell County Courthouse for news about who would get temporary custody of his 13-year-old granddaughter. Bandelman — who has two grown children, a daughter in California and a son in Lockhart — hoped it would be his son, but Robison chose the ex-wife.

Court was adjourned, and minutes later, Bandelman noticed Robison entering a public restroom down the hall.

When Bandelman barged in, Robison reacted forcefully and a bailiff quickly intervened. Family law, particularly divorce and child-custody cases, often produces volatile court proceedings, and across the nation, security officers and judges are trained to beware of confrontations.

Bandelman was escorted from the courthouse and was standing on the sidewalk when two bailiffs handcuffed him and returned him to Robison's courtroom. (Robison's home courtroom is in New Braunfels, but several days a month, he hears cases in Lockhart and San Marcos.)

The judge sent out documents on the contempt of court charge but did not appear in court, said Bandelman, who had no previous criminal record.

Later that afternoon, he was photographed, fingerprinted and booked into the Caldwell jail, said Bandelman, a retired electrical safety instructor for Texas A&M University.

"I couldn't understand why all this was happening," he said recently. "I was upset about what was happening about my granddaughter, more upset about that than what they were doing to me at the time."

Bandelman figures it was about midnight on his second night in jail when his body — worn down by stress, lack of sleep and arthritic aches — began shaking uncontrollably. He carefully climbed down from the top bunk, the last available bed in the cell.

"I started banging on the glass window, yelling, 'You gotta get me out of here. I have to get out.' The guard yelled, 'Get back!' " Bandelman said. "The (other inmates) were yelling, 'What's the matter, old man? Can't you take it?' They were all laughing and hollering."

Bandelman said he was eventually placed in solitary confinement, where he stayed in relative peace until he left the jail.

'Can be problematic' Bandelman was jailed on a Tuesday afternoon.

 

The next morning, his wife, Pat, hired Lockhart lawyer John Bennett, who that day filed a habeas corpus petition asking the state district court to free his client. But when Bennett, who declined to discuss the case, couldn't get a hearing scheduled, he filed a new petition at the 3rd Court of Appeals late Thursday.

The Austin appeals court asked Robison to respond to the appeal by noon Friday. Before that deadline, the judge amended his contempt order, freeing Bandelman.

Bandelman's habeas petition alleging illegal restraint remained pending at the appeals court until Aug. 7, when justices issued a ruling raising questions about Robison's contempt finding.

"Jailing individuals for contempt under circumstances such as those presented here without the court being in session and without notice and hearing can be problematic," the opinion by Justice Alan Waldrop said.

Even so, the appeals court said, Bandelman could not be granted relief because his appeal was moot.

Bandelmansaid he intends to file a complaint with the State Commission on Judicial Conduct, an independent agency that investigates allegations of wrongdoing against Texas judges.

Since 2000, the commission has privately sanctioned seven judges for abusing direct contempt powers, among the agency's lightest punishments because offending judges' names are not made public.

Bandelman also worries that his arrest and jailing will remain on his record — a valid concern, according to the Department of Public Safety. Contempt charges reported to DPS with fingerprints are posted to the state's computerized criminal history system, a DPS spokeswoman said.

'Thicker skin' needed In 1991, the Texas Court of Criminal Appeals issued a pair of rulings stating that insults and offenses to a judge's sensibilities are not enough for a contempt finding. In addition, offensive comments — even if spoken in court — do not constitute contempt unless they are disruptive or boisterous, the court said.

 

"Court opinions over and over imply that judges need to have a little thicker skin than your average citizen," said Allison of the UT Law School. "When it gets to the point of disrupting the (legal) process, then they may take the gloves off and put a stop to it."

Though judges are given wide discretion to determine what is contempt, they have less leeway on how they can respond, Allison said.

Court rulings have been clear that direct contempt is reserved for disruptions to "the business of the court," he said. Similar disruptions in the hallway, stairway or restroom do not apply, he said.

Jim Harrington, head of the Texas Civil Rights Project, agreed. "The law is very clear," he said. "Once you're outside the courtroom, the judge loses a lot of power. You can cite someone for contempt, but that has to be heard by another judge."

Because of the clearly defined limits on direct contempt, misuse of the power is rare, said Harrington, who called Robison's action outrageous.

Robison "is out of sync, not only with the Constitution but with contemporary judicial practice," he said.