When you’ve pled guilty to trying to steal a change machine from a car wash, and you have a long criminal record, and the judge gives you a five-year sentence but suspends three and a half years, what should you do?
- Thank the Court for its grace.
- Quietly follow law enforcement back to your cell.
- Contemplate rehabilitation.
- Flip the bird at the judge.
Shawn Raynard Ross chose D. First Circuit Judge Bruce V. Anderson chose to boost Ross’s sentence. Tuesday, the Supreme Court hears Ross’s argument that Anderson erred.
According to court documents, on January 24, 2017, Ross tried to liberate a change machine from the Northside Car Wash in Chamberlain. The machine held its ground, withstanding $2,887.21 worth of damage before Ross walked away empty-pocketed. Chamberlain Police i-d’ed Ross on security video and arrested him February 3. A grand jury indicted him on two Class 5 felony counts, third degree burglary and intention damage to property, each of which carry five years max in the pen. Ross pled guilty to the burglary count.
On June 13, Judge Anderson sentenced Ross to five years, with three and a half years suspended, and ordered Ross to pay for the damage to the brave change machine. Judge Anderson based this sentence on Ross’s lengthy record of “aggravating circumstances,” listed in an amended judgment of conviction filed September 28:
After the gavel dropped, Ross inopportunely vented his frustration. Judge Anderson tells the story in his July 20 contempt order:
Judge Anderson acknowledged in his July 20 order that he was a little hot (as would we all be in a situation where :
Since the date of the hearing the Court has had time to reflect and reconsider this second contempt and has determined that it was said in the heat of the moment during a stressful sentencing hearing and has decided not to impose a second contempt or punishment for the statement.
Judge Anderson kept 30 days in the Brule County Jail for flipping the bird in his courtroom. At a resentencing hearing in September, Judge Anderson backed off the full five years and set the final sentence at 60 months with 40 months suspended. That’s still two months more in the pen and one month more in Brule County than when Judge Anderson’s pre-bird gavel-rapping on June 13.
Ross does not directly argue against the 30-day contempt sentence. His brief, filed by attorney Douglas Papendick, focuses on the enhancement of the five-year burglary sentence. Ross contends that the moment the judge issued sentence and banged the gavel on June 13, he was under the supervision of the executive branch, not the judicial branch. “Any violation,” says Ross’s lawyer Douglas Papendick in the appellant’s brief, “would have been an issue involving the Department of Corrections and not the judicial system” under SDCL 23A-27-18.4. Besides, claims the appellant, there was no violation of parole:
However, it is clear that the Defendant did not violate any conditions of his sentence. There was no order pronounced and there was no order included in the Judgment of Conviction to the effect that the Defendant shall obey all laws or even that he not be held in contempt of court. Assuming arguendo that he was in violation of said sentence for his behavior and comments to the Court, he was under the supervision of the Department of Corrections and the Board of Pardons and Paroles and that entity would have been required to issue an order to show cause and schedule a hearing. See SDCL 24-25-20.
Ultimately, it is our contention that there was no violation of parole. It was simply a matter of the Court enhancing the sentence after the Defendant’s contemptuous behavior [Douglas Papendick for Shawn Raynard Ross, Appellant’s Brief, State v. Ross., 2017.12.21, p. 6].
While the appellant’s brief does not argue directly against the judge’s authority to maintain order in the court, it does call for reversing the amended judgment of conviction, which includes the contempt sentence.
The state (Assistant Attorney General Grant Flynn batting for A.G. Marty Jackley) rebuts that the Court did not actually increase Ross’s sentence for the crime that led to his appearance, only revoked the suspended portion. The state says that revocation was perfectly within precedent set in past cases in which judges clarified or revised sentences shortly after sentencing hearings to take into account new information. The state says the court granted the defendant plenty of relief by resuspending 40 of the 42 months the judge took away after the flip and the lip in June.
Besides, says the state, we can’t let “mechanically applied” rules excuse knuckleheads’ flipping the bird at the court!
Justice Henderson’s dissent in Bucholz further extolled the responsibilities and virtues of the trial court with regard to maintaining the dignity of the courtroom, explaining that legal rules cannot be “mechanically applied.” 403 N.W.2d at 404 (Henderson, J., dissenting). Justice Henderson proceeded to acknowledge the “doctrine of inherent power” of the trial court, declaring that procedural justice must be subordinate to substantive justice. Id.
These cases elucidate the inherent authority of the trial court to maintain order and decorum in the courtroom. Here, Defendant literally raised his middle finger to that authority and scoffed at the trial court’s generosity. SH 8, SR 185. The trial court acknowledged Defendant’s financial hardship and fashioned a sentence that would require Defendant to spend the minimum time allowable in prison. SH 6-7, SR 183-84. Defendant rejected that gift and crudely insulted the authority of the trial court. SH 8, SR 185. The trial court was acting under its inherent authority to maintain order in the courtroom when it, without actually increasing Defendant’s sentence, reinstated the suspended portion [AAG Grant Flynn, Appellee’s Brief, State v. Ross, p. 10].
The appellant replies that the cases the state cites don’t rebut the fact that the original June 13 sentence was validly issued and commenced the moment the judge ended the hearing and law enforcement started leading Ross out of the courtroom. But if the appellant wins anything on that argument, it will be on the most technical grounds. Nowhere does the appellant contend that flipping the bird at the judge in a courtroom, regardless of whether the gavel has banged or not, is not contempt of court, punishable with jail time. Nowhere does the appellant show that the court could not consider the defendant’s undenied contempt for the court in its resentencing hearing. The appeal seems moot now that Ross got due process through a resentencing hearing and received only 60 days less grace from Judge Anderson than he would have if he hadn’t chosen D, for Dumb, and flipped the bird at the judge in the courtroom.
Ross currently sits in Springfield. His suspended sentence release date is November 22, 2018.
That exchange had me thinking John Bender in The Breakfast Club.
Thanks for reminding me, Ben: Also not wise: telling the judge, “Shut up… go fix me turkey pot pie!”
One of the all-time most reference-able movies. I haven’t had time to read Ringwald’s recent piece for the New Yorker, but it sounded interesting.
Like me, I’m sure you’ve had similar situations with students. It always strikes me as bizarre their decision to needlessly self-destruct, but like Mr. Bender, there’s probably a long history of abuse behind it…
I’ll bet Tim Bjorkman would have a similar view of Mr. Ross’s situation.
Judges are human too, but their job demands an ability to remain composed. On the date of this sentencing, Judge Anderson lost his composure and on that day abused the discretion he’s given. Over a month later, realizing that his hot-headed response would reflect poorly on him and that the sentence would be overturned by the SD Supreme Court (and that the Supreme Court would remove him from the case and assign it to a different judge for re-sentencing), he reversed course.
I don’t know what the Supreme Court will do, but what they should do is reinstate the original prison sentence, but let the 30-day contempt ruling stand. The court’s ability to find someone in contempt is THE remedy in situations like this.
Ror, I take it you would reject the argument Judge Anderson makes that this demonstration of contempt supports the position that the defendant does not deserve as much grace from the court, that his demonstrated lack of respect for the justice system suggests he would be more likely to return to a life of disrespect for the law once released?
An extraordinarily antisocial serial offender who flips off a judge on his way to prison poses a much, much smaller threat to human liberty than a judge who responds by threatening to leave him in prison several years(!) longer.
In the interest of full disclosure, I’ll note that I very much understand the temptation to flip off an arrogant, condescending judge who seems to think the law is under him instead of the other way around.
The judge should have locked him up for the maximum amount, just for being an ass. This fellow is a threat to people’s property and likely their safety everywhere.
a judge reacting emotionally and improperly enhancing a sentence is a lot like a cop shooting a minority person for carrying a cell phone. both require prodigious capacity for responsibility under pressure. lots of red neck LEOs say if a cop says do something, you better or else you’ll get shot and; that is not supposed to be how it works. A judge hears the worst of people and their prosecutors day in/day out and must maintain composure recognizing the tremendous power over life and death the people have authorized to exercise on our behalf. The Judge has college, law school, work experience (some times unless it is a purely political appointment), ethical responsibility/liability and training. The cop with the gun has much less. None of these people serving the public are likely adequately paid, but the officer’s union helps. Undoubtedly tough jobs. Pesonnel selection has to be highly evolved.
As we noticed in Lake Arthur NM recently. Mercer and the Kochs have again exploited a fragile system with their billions. https://www.bloomberg.com/news/features/2018-03-28/robert-mercer-s-secret-adventure-as-a-new-mexico-cop
Let’s just accept Judge Anderson’s argument at face value that Ross’s disrespect indicates that Ross will be problematic on parole or probation. Is 2 more months in prison really going to solve that (possible) future problem? This rationale by the court seems to have been contrived after the fact to justify the court’s initial emotional reaction.
Leslie, You have to be the most prejudiced, racist, bigoted person I have ever interacted with:
“is a lot like a cop shooting a minority person, lots of red neck, you better or else you’ll get shot, A judge hears the worst of people.”
You need professional counseling.
a judge reacting emotionally and improperly enhancing a sentence is a lot like a cop jailing an addict for his/her illness. https://www.thenation.com/article/drug-addiction-isnt-a-crime-we-just-treat-it-like-one/
my experience is that red necks advance societal stigma.
guess what sarge?, this is what is said by “professional counseling.” https://www.drugabuse.gov/about-nida/directors-page
https://www.npr.org/sections/thetwo-way/2018/04/15/602598119/black-teenager-shot-at-after-asking-for-directions
Prosecutors reportedly said video from home security system backs up the teenager’s story of what happened….didn’t want to believe the shooting was racially motivated, but was convinced by the video.
Mayor Bryan Barnett said in a statement, “I am personally sickened by the initial reports and they suggest– behavior completely unacceptable and inconsistent with the character and values of our community–.” (–my emphasis sarge– this is what a red neck looks like)
common denominator: republican “values”
ole’sarge, meet grudz. you’d like him
sarge, its like Fox News calling protesters of Charleston KKK/Nazi/Militia the bad guys.
Leslie you have poisoned your own mind. You disparage vast groups of people just as white mobs would hang the black man. You are no different. Ever statement, link and word is filled with uncontrolled anger. You need to turn off your computer and go spend time with the elderly in a nursing home and find love again by caring an not hating. Peace
OS, you appear to have nothing to say about this issue. Instead you’ve taken one comment about members of the privileged class and tried to turn it into a sanctimonious and false accusation of bigotry. Get off it.
Of course, I’m not sure what the Kochs and Mercers have to do with the discussion, either.
The analogy to racial bias in police shootings may be worth considering. Ross is Native American; Judge Anderson, I believe, is white. But there’s no clear racial bias here: the appeal claims no such bias, the action and words that prompted the judge’s harsh response had nothing to do with race, there’s a strong argument that the defendant had it coming, and the judge ultimately tempered his response. To determine whether there was any racial bias, we’d have to look at Anderson’s record of sentencing and see (1) if he has been more lenient with white defendants coming before him on similar charges and (2) how harshly he has punished other people in the courtroom for similar contemptuous acts.
Ror, fair point. I suppose there’s no way to escape the post-facto contrivance accusation… although Anderson admits he was too hot in his initial reaction and scales down the enhancement of the sentence considerably. We could make the argument about the arbitrariness of sentencing in any case: how do we know exactly how many months are necessary to change the average criminal’s attitude? To contend that two extra months really isn’t enough to rehabilitate the defendant seems to lead to the argument that the judge should have declared the defendant incorrigible, taken Grudz’s advice, and given him the maximum sentence in the first place.
Kurt, fight that temptation. It will profit you naught.
This Ross guy should run for President as a Republican. He seems to have gone down the same path of social development and comportment as the current resident of 1600 Pennsylvania Avenue. Really, what is the difference between the physical “bird” flipped to a judge and the constant “bird”-like pronouncements of Donald J. Trump toward judges and courts?
Ross tired to boost a changed machine, and got caught. Trump commits crimes on a daily basis, but the privileged white boy pays people off. Well, maybe Mueller is about to end the lifetime of white privilege that has allowed Trump to behave like Ross did, and get away with it.
Compare the minor expression of contempt by this person with the greater contempt and downright disdain for the entire judicial system by the bogus Potus.
I can tell you both need to be held in contempt, Drumpf probably forever. Drumpf’s white privilege gives him a decided advantage of higher and better education, which he has shown utter contempt for.
Plus, Drumpf’s rap sheet is far longer than Mr Ross’s.
This is unreal! Three and a half years…in a cage…for a childish hand gesture. He is a human being. This judge seems like he wanted to prove his authority to a person who is obviously at the judge’s whim. Stories like this are some of the reasons I am sad for humanity, and why I am skeptical of most authority. Judges should be above baloney like this.
Ryan, are you o.k. with 30 days for contempt of court for that childish hand gesture in a courtroom?
Cory, 30 days certainly feels more reasonable than 1,277 days for something most adults without ego complexes would brush off. I understand the importance of maintaining order in a courtroom, but there is no way this was about maintaining order. It’s not about the defendant’s likelihood for rehabilitation. It was obviously revenge for what the judge must have considered to be an unforgivable personal insult. This is the most ugly-hearted thing I have seen recently. This judge should retire.
This is puzzling, as giving the finger is normally protected speech under the 1st Amendment. Many resources, however, suggest it is not protected speech in court.
There are two types of contempt of court, civil and criminal. Civil contempt is cured once the defendant complies with what ever court orders he or she initially disobeyed. Giving the finger would normally not qualify as civil contempt because it typically doesn’t involve disobedience to a court order.
Even assuming that the 1st amendment does not apply in court, which is an odd assumption, it does not appear that the mere act, without more, of giving the judge the finger would meet the elements for a criminal contempt conviction. In the federal system these elements are:
It would seem that the element requiring obstructing justice is missing, as well as the required degree of criminal intent.
SD has a slightly different definition of the elements of criminal contempt, but it seems to require similar proof:
https://law.justia.com/cases/south-dakota/supreme-court/1986/15067-1.html
From your report, I have trouble determining how the given finger interfered with or subverted the administration of justice in any way. Add to that the strong normal presumption that giving the finger is protected speech under the 1st Amendment and it appears an injustice occured in the Ross case.
Great post, bcb.
Besides the technical issue of whether or not the judge had the authority to do what he did, it just frankly blows my mind that this judge wants to use the South Dakota criminal justice system, the court system, the correctional system, and six figures of taxpayer dollars to make himself feel like he “showed” that defendant who had the audacity to disrespect the judge or the court. It’s almost like every defendant he ever talked with in court was there voluntarily. For F’s sake. What a sad joke.
Thanks Ryan. It gets even stranger –
The SD definition of criminal contempt I posted was dicta from a 1986 divorce case resolving a civil contempt issue. The court cited a 1934 case for its definition, but did not cite a SD statute confirming the elements of criminal contempt. (And I have yet to find a statutory statement of the elements in our current code).
https://law.justia.com/cases/south-dakota/supreme-court/1986/15067-1.html
The absence of a clear statutory or common law definition of the acts that constitute the elements of a crime creates a conflict with the 14th Amendment’s due process requirements.
Due process normally requires not only notice of the prohibited conduct, but notice of the charge you face, notice of the elements of the alleged crime, an opportunity to enter a plea or contest the charge, counsel, and more, including an opportunity to present evidence, confront adverse witnesses or evidence, be represented by counsel, and to be judged by an impartial decision maker using a “reasonable doubt” standard.
Statutes that authorize a court to skip these due process requirements and impose a summary conviction for criminal contempt, or any other alleged crime, seem unconstitutional on their face.
While disruptive behavior by anyone in court is inconvenient, the court should be able to require security to intervene to restore order. And if the disruption is thought to be a crime, there is no need for a summary conviction. If a crime is alleged, treat the accused with the same due process accorded to others accused of a crime.
It seems that all sorts of protected speech loses its protection in the courtroom. Judges can slap us with contempt just for having a conversation in the audience while the trial is going on.
Still, I wonder, bcb, if Ross should retain you. His lawyer isn’t making any arguments about the protected nature of the speech in question or the criteria for contempt. Papendick is just arguing procedure and jurisdiction.
sarge-your last post castigating me was tough to swallow. Suppose you’ll double-down like trump. find out who appointed this fed judge, eh?
“…For his … gesture of contempt for his judge and courthouse decorum, Shawn Ross, an American Indian, got 30 days in jail. For his … efforts to defy a judge’s order and deny thousands of disproportionately minority Americans their right to vote, Kris Kobach, a white man … gets no time in jail.” dakotafreepress.com/2018/04/19/judge-slaps-kobach-with-contempt-of-court-but-hes-white-so-no-jail-time/
Cory, on the vagueness argument I note that even new Justice Neil Gorsuch agrees with that concept. In a 5-4 decision ruling in favor of an undocumented immigrant that was going to be deported, Gorsuch joined the four more liberal Justices to hold that a statute the government relied upon for the deportation order was unconstitutionally vague. Slate’s Mark Joseph Stern provides a short summary and analysis:
https://slate.com/news-and-politics/2018/04/why-neil-gorsuch-sided-with-the-liberal-justices-in-sessions-v-dimaya.html
“bearcreekbat” writes:
Thanks for the link. Here’s an article on the court’s opinion from a libertarian publication:
https://reason.com/blog/2018/04/17/neil-gorsuch-joins-liberals-in-5-4-scotu