IN THE MATTER OF EDWARD J. DESAULNIER, JR. & another (No. 3).

BY THE COURT. On November 29, 1971, the Supreme Judicial Court (this court) made certain findings and rulings of law regarding the refusal of the witness I. Charles Baker to answer questions put to him by special counsel, and denied Baker's attempt to assert a general claim of privilege in advance of being questioned. Special counsel then asked Baker a series of thirty-five questions (attached hereto as Exhibit A), each of which he declined to answer, "relying on the Fourth and Fifth Amendments to the Constitution of the United States." After each refusal to answer, the court ordered Baker to answer, eliciting only the same refusal. The court adjudged Baker to be in contempt for each refusal to answer, and reserved sentence. At the end of the day's proceedings, the court sentenced Baker to serve five months in the common jail for failure to answer each of questions 1, 3-12, and 22 (Group I). The twelve sentences were to be served concurrently. On each of the other contempts, the court deferred sentencing until December 1, 1971.

On December 1, 1971, prior to sentencing by this court, the United States Court of Appeals, First Circuit, affirmed the action of a Federal District Court judge who rejected Baker's request to be released on bail. The Court of Appeals stated that it saw "no substantial merit in [the] petitioner's attempt to challenge the Commonwealth's grant of immunity that would remove the danger of self-incrimination," and concluded that his "request for transactional immunity as to certain complaints brought against him for larceny committed in 1968 from his employer seems but a blatant attempt to horse-trade the Commonwealth." Baker

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v. Eisenstadt, Misc. No. 540, U.S. Ct. App. (1st Cir.) 1, 2, 3.

On December 1, 1971, following argument by Baker's counsel, who made it clear to this court that he and his client were fully aware of the action and opinion of the United States Court of Appeals, First Circuit, this court stated that "if Mr. Baker wants to testify . . . he is at liberty to do so as of now. We have not ended the hearing." Counsel for Baker indicated that his client still intended to stand on his claim of privilege. The court then, as to each of four specific groups of questions, imposed six months concurrent sentences to be served in the common jail because of Baker's refusals to answer each of the questions in that group. Each of the following questions fell into one of these four groups: 13, 14, 16, 17, 21, 23, 24, 25, 26, 28, 29, 30, 31, 32, 18, 19, 20, 27, 37, 39, 33, 34 and 35. The sentences imposed were to be served as follows:

GROUP II:

on each of the contempts on questions 13 and 14, concurrently with each other, and from and after the sentences for contempt imposed on November 29, 1971.

GROUP III:

on each of the contempts on questions 16, 17, 21, 23, 24, 25, 26, 28, 29, 30, 31 and 32, concurrently with each other, and from and after the sentences for contempt imposed for Group II.

GROUP IV: on each of the contempts on questions 18, 19, 20, 27, 37 and 39, concurrently with each other, and from and after the sentences imposed for Group III.

GROUP V:

on each of the contempts on questions 33, 34 and 35, concurrently with each other, and from and after the sentences imposed for Group IV. (See Exhibit A.)

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Counsel at that point in effect moved for a jury trial for his client, which this court denied. The court then ordered the hearing closed "unless otherwise ordered by this Court on its own motion or on motion of counsel."

1. Massachusetts law has long refused to distinguish rigidly between the civil and criminal aspects of contempt of court. McCann v. Randall, 147 Mass. 81, 90. New York Cent. R.R. v. Ayer, 253 Mass. 122, 129. Root v. MacDonald, 260 Mass. 344, 357-358. Stow v. Marinelli, 352 Mass. 738, 745. Reed, Equity Pleading & Practice, Section 971, 292-293. A sentence for contempt in Massachusetts may be "partly remedial and partly punitive, partaking both of civil and criminal features." Root v. MacDonald, supra, 363-365. Stow v. Marinelli, supra, 745. Nothing, however, precludes a Massachusetts court from giving an unconditional sentence for contempt which is largely or entirely "for the purpose of inflicting punishment upon one who has wilfully disobeyed a lawful order of the court," McCann v. Randall, 147 Mass. 81, 90, where this is necessary to vindicate the authority of the court and to deter other like derelictions, Root v. MacDonald, supra, Stow v. Marinelli, supra, 745, Ex parte Grossman, 267 U.S. 87, 111, or where the acts of the contemnor are an affront to the law tending to obstruct or degrade the administration of justice. Cartwright's Case, 114 Mass. 230, 238. Godard v. Babson-Dow Mfg. Co. 319 Mass. 345, 347. To the extent that such a contempt sentence is for purely punitive purposes and is absolute, not conditional, in nature it constitutes a sentence for criminal contempt. See Hurley v. Commonwealth, 188 Mass. 443, 447; Blankenburg v. Commonwealth, 260 Mass. 369, 372; Opinion of the Justices, 301 Mass. 615, 618-619; Corcoran v. Commonwealth, 335 Mass. 29, 35. This is in accord with the Federal law. See Shillitani v. United States, 384 U.S. 364, 369-370.

The sentences imposed on Baker for contempt of court were unconditional in terms. They were for the purpose of vindicating the authority of the court and punishing the contemnor for obstructing and degrading the administration

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of justice in an extraordinary proceeding of utmost importance to the State judicial system. His sentences were imposed, at least in large part, for specified criminal contempts of court. He does not have "the keys of . . . [his] prison in . . . [his] own pockets." See Shillitani v. United States, supra, 368; In re Nevitt, 117 Fed. 448, 461 (8th Cir.). We are not now required to discuss the authority of this court, in its discretion, with respect to the sentences already imposed in the event that Baker makes full disclosure.

2. In a proceeding for contempt, there is no right to a trial by jury under Massachusetts State law, even when the proceeding's object and result are wholly punitive. Root v. MacDonald, 260 Mass. 344, 365. Dolan v. Commonwealth, 304 Mass. 325, 340. Commonwealth v. McHugh, 326 Mass. 249, 277. See Cartwright's Case, 114 Mass. 230, 238; Walton Lunch Co. v. Kearney, 236 Mass. 310, 317; Blankenburg v. Commonwealth, 260 Mass. 369, 373-374; Opinion of the Justices, 349 Mass. 786, 793. General Laws c. 220, Section 13A, which provides for a jury trial in contempt proceedings growing out of labor disputes, specifically excludes any "contempts committed in the presence of the court."

3. In United States v. Barnett, 376 U.S. 681, 692, Mr. Justice Clark, speaking for the court, said, "It has always been the law of the land, both state and federal, that the courts -- except where specifically precluded by statute -- have the power to proceed summarily in contempt matters." This case ruled that there was no general right to a jury trial in criminal contempt proceedings, pp. 692-700, although some members of the court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried without a jury. Pp. 694-695, note 12. The general rule has been reexamined in light of the decision of the Supreme Court of the United States that the constitutional guaranty to jury trial extended to State courts in serious criminal cases. Duncan v. Louisiana, 391 U.S. 145, 149-150, 159.

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In Bloom v. Illinois, 391 U.S. 194, 195, 210-211, the Supreme Court held that where sentence by a State court for a single out-of-court criminal contempt reached twenty-four months imprisonment there was a right to a trial by jury. There was a short, but compelling, dissent by Mr. Justice Harlan, joined by Mr. Justice Stewart. P. 215.

We are, of course, bound by the re‰xamination in the Bloom decision of the general rule stated in the Barnett case. The case before us, however, is very different, in both the letter and the spirit of the law involved, from that in the Bloom case. Baker was guilty of a series of distinct contempts against the authority of this court, consisting of separate refusals to obey different orders of this court to answer questions. These the court separated into groups of questions, each question in each group relating to the same general subject as the other questions in that group. The refusal to answer the questions in no one of these groups was made the basis of a sentence of more than six months. The situation is entirely different from the single contempt in the Bloom case, where the contemnor wilfully sought to have admitted to probate a will falsely prepared and executed after the death of the putative testator, an act which was held to deserve a sentence of twenty-four months imprisonment. Bloom v. Illinois, supra, 195.

The Bloom case specifically declined to carry over the jury trial requirement to "petty" offences. Dyke v. Taylor Implement Mfg. Co. Inc. 391 U.S. 216, 219-220. See Cheff v. Schnackenberg, 384 U.S. 373, 380; Baldwin v. New York, 399 U.S. 66, 68-69. Mr. Justice White, speaking for the court in the Bloom case, said, "By deciding to treat criminal contempt like other crimes insofar as the right to jury trial is concerned, we similarly place it under the rule that petty crimes need not be tried to a jury. . . . Our analysis of Barnett, supra, and Cheff v. Schnackenberg, 384 U.S. 373, makes it clear that criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved. Under the rule in Cheff, when the legislature

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has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense." Bloom v. Illinois, supra, 210-211. Frank v. United States, 395 U.S. 147, 149. None of Baker's offences was serious enough to demand an actual penalty of more than six months. These constitute petty offences, Dyke v. Taylor Implement Mfg. Co. Inc., supra, 219-220, Baldwin v. New York, supra, 68-69, which do not demand a jury trial as a matter of constitutional right in either Federal or State courts.

There is also another distinction, particularly important with regard to jury trial, between the kind of contempt involved in the Bloom case and that before us. In the Bloom case, the essence of the criminal contempt took place outside of the court room. The crucial question was not whether the petitioner had wilfully petitioned to admit to probate the will in question, for of that fact there could have been little doubt, but whether the will had been falsely prepared and executed after the death of the putative testator. Bloom v. Illinois, supra, 195, 210-211. Remanding for a trial by jury in this case, involving an alleged event which occurred largely out of court and off the record, was a reasonable step for the Bloom court and one which protected a right which could have had some genuine content and value. Bloom v. Illinois, supra, 211. Such a right might also have some value if the contempt involved a court-room disorder where the facts of what occurred were in question and where the personality of the judge was sufficiently involved as to impair his objectivity as to what actually took place. Compare the facts of Mayberry v. Pennsylvania, 400 U.S. 455, 455-463.

In the instant case, however, the contempts were refusals, made in open court before this court during a proceeding of record, to obey the lawful orders of the court to answer questions. There is no dispute of fact as to whether the individual refusals took place. The in-court proceedings

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were entirely orderly. [Note 1] The contemnor was not punished for any out-of-court contempts.

There have been no Federal cases which have decided that a right to jury trial exists where the contempt punished occurred in an orderly court room in the absence of any genuine dispute as to the facts. Even in the Mayberry case, where sentences for in-court contempt of a disorderly nature were given by a State judge and amounted to not less than one year for each offence and totaled eleven to twenty-two years, Mayberry v. Pennsylvania, supra, 455, the Supreme Court did not discuss a jury trial requirement, but vacated and remanded for a public trial before another judge on grounds relating to the possibility of personal involvement by the judge. Mayberry v. Pennsylvania, supra, 466. [Note 2]

Baker has not argued or even suggested the existence of issues of fact relating to the offence with which he is charged. Indeed it would be most difficult, in the circumstances of this case, to conceive any factual questions which require or warrant their submission to a jury for determination. A jury trial in these circumstances would be an exercise in futility. See Leigh v. Rule, 331 Mass. 664, 669.

To fetter the ability of State courts to protect themselves against contempt in proceedings, such as this one, of the utmost importance to the integrity of the State judicial system itself in the name of a guaranty which, if granted, would be practically void of any meaningful value must, in the words of Mr. Justice Harlan, be "in derogation of the

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central premise of our Constitution." Bloom v. Illinois, supra, 215. Baker was not deprived of a Federal right to a jury trial.

4. We next consider whether Baker committed one or a number of contempts by his repeated refusals to answer the questions put to him by special counsel. There are no reported Massachusetts cases dealing with this issue to which we can look for guidance. Two related principles have been established in other jurisdictions:

1. Only one penalty for contempt can be imposed when separate questions are designed to establish but a single fact, or relate to but a single subject of inquiry. United States v. Orman, 207 F. 2d 148, 160 (3d Cir. 1953) and cases cited;

2. When several questions cover more than a single subject of inquiry, a single contempt is committed by refusal to answer where every question falls within the area of refusal established by the witness when asked the first question. Yates v. United States, 355 U.S. 66, 71, 73 (witness refused to identify anyone as a Communist). People v. Riela, 7 N. Y. 2d 571, 576-578 (witness refused to answer any questions concerning the so called "Apalachin meeting"). [Note 3]

With respect to (1), each of Baker's refusals to answer after being ordered to do so by the court constituted a separate contempt. No question put by special counsel was repetitive. Each sought to elicit new facts. For the purpose of sentencing, however, this court divided the questions into broader subjects of inquiry. Group I contains twelve questions, each dealing in some way with Baker's involvements with Raymond in the fall of 1961 and the

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spring of 1962, particularly with respect to the court proceedings in the Superior Court in Middlesex County (Cambridge) and the First District Court of Northern Middlesex (Ayer). The sentences imposed on November 29, 1971, for the contempts within this group were concurrent. Our judgment of the proper penalty was not influenced by the fact that we found Baker guilty of twelve contemptuous acts, but by our feeling that a refusal to speak on this particular, definable subject matter merited five months in the common jail. Compare Yates v. United States, 355 U.S. 66, 71, 75. The penalty would have been the same whether we viewed this as one contempt or twelve. It was not possible to categorize, however, until special counsel had exhausted his examination. We thus adopted the procedure of adjudging the witness in contempt for each separate refusal to answer, and reserving sentence until examination had been completed.

We postponed until December 1, 1971, sentence on the contempts (other than Group I) for which no sentence was imposed on November 29, for two principal reasons: (1) to afford Baker an opportunity to reconsider his position with respect to such other questions, and (2) to examine such questions and group them appropriately for sentencing purposes.

With respect to the concurrent six month sentences within Groups II-V, we felt that consecutive, or "from and after" sentences should be imposed for failure to answer questions in each of the four groups. Baker had every opportunity to testify after Baker v. Eisenstadt, supra, was handed down and before the hearing was terminated, and the fact that he did not do so was a factor in our consideration. See Second Additional Grand Jury v. Cirillo, 12 N. Y. 2d 206, 210-211; Vario v. County Court, Nassau County, 32 App. Div. 2d (N. Y.) 1038.

Groups II-V were divided according to subject matter in the following way:

Group II: Baker's involvements with Raymond in June, 1962.

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Group III: Baker's involvements with Raymond in September, 1962, particularly with respect to what transpired on September 27 and 28.

Group IV: Baker's alleged relationship with Judges DeSaulnier and Brogna in September, 1962.

Group V: Baker's alleged meeting with Raymond and Judge DeSaulnier at a public place known as the Darbury Room on September 28, 1962.

With respect to (2), we point out that Baker never did ". . . [carve] out an area of refusal" as the witnesses did in cases such as Yates v. United States, 355 U.S. 66, 71, 73, and People v. Riela, 7 N. Y. 2d 571, 576-578. It is significant that Baker declined to answer when special counsel asked him: "Are you going to refuse to answer any and all questions I put to you, which questions I represent to you will be confined by their terms to the years 1961 and 1962?" [Note 4] In the Riela case, the witness refused to answer any questions before a grand jury pertaining to the "Apalachin meeting." The prosecutor continued to inquire, and the defendant was found guilty of seventeen contempts. In arguing to sustain the convictions on all seventeen, the State relied on the earlier case of People v. Saperstein, 2 N. Y. 2d 210, wherein the Court of Appeals upheld five convictions of contempt because of a defendant's refusals to "state definitely" who were the participants in five separate telephone conversations. In distinguishing the Saperstein case, the Riela court stated: "In the present case, the District Attorney necessarily knew, ahead of time, that the claim of privilege once asserted would be repeated, while in Saperstein the prosecutor had to continue questioning to find the limits of the defendant's refusal to answer. In Saperstein, in other words, the District Attorney was engaged in bona fide interrogation, in the sense that he could reasonably have supposed that the witness would answer each of the questions asked, while here the District Attorney repeated

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17 questions knowing full well from Riela's response to his first query that he would not answer any of them." P. 578.

We are careful to point out, however, that we need not decide the question whether a defendant can, by prior announcement, limit his potential number of contempt citations to one. We prefer to await the arrival of such an issue in the normal course of litigation. Suffice it to say that Baker made no effort so to define his area of refusal, and thus cannot come within the possible protection of principle (2).

We recognize that our decision to impose consecutive sentences may be subject to constitutional limits. We consciously attempted to avoid imposing sentences so long in the aggregate as conceivably to violate constitutional limitations. See Mayberry v. Pennsylvania, 400 U.S. 455, 469 (Harlan, J. concurring); Second Additional Grand Jury v. Cirillo, 12 N. Y. 2d 206. In this respect the aggregate sentences imposed (with respect to the several groups of questions each relating to a different period of time or to a different group of incidents) are not excessive. The punishment imposed is fully warranted in view of the great importance of this proceeding to the integrity of the judicial system of the Commonwealth, and in view of the seriously obstructive and contumacious action of Baker. He was offered extraordinarily thorough protection from prosecution by the enforceable stipulations of the Commonwealth in addition to the protection afforded by the statute of limitations.

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EXHIBIT A

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EXHIBIT B

COMMONWEALTH'S STIPULATION

The Commonwealth will not prosecute any indictment returned against I. Charles Baker charging conspiracy or larceny* prior to January 1, 1965.

In prosecuting any indictment charging conspiracy or larceny* subsequent to January 1, 1965, the Commonwealth will not introduce as evidence any conduct or statements of I. Charles Baker engaged in or made prior to that date.

The Commonwealth will not introduce in any criminal proceeding any testimony given by I. Charles Baker before the Supreme Judicial Court.

For the Commonwealth,
John J. Droney
District Attorney

By, Richard A. Gargiulo
First Assistant District Attorney [Assented to in behalf of the Attorney General]

[* Underlined words in effect added by stipulation in open court November 24, 1971, Tr. 1197-1198]

Reporter's Note. In open court on November 29, 1971, after the findings, rulings, and order were made, the above stipulation was amplified by adding at the end of the sentence the following:

or any facts learned as a consequence of such testimony, except in any prosecution for perjury based upon testimony by I. Charles Baker before the Supreme Judicial Court in this proceeding. The Commonwealth will not prosecute I. Charles Baker for perjury, if any, committed in his sworn testimony before Chief Justice McLaughlin of the Superior Court on August 25, 1971.