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10/04/90 NINA KRAUT

October 4, 1990

IN RE NINA KRAUT, APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Peter H. Wolf, Trial Judge

Ferren and Steadman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Ferren

The trial Judge summarily convicted attorney Nina Kraut of criminal contempt of court. Super. Ct. Crim. R. 42 (a). *fn1 He cited three reasons: (1) Kraut repeatedly interrupted the Judge; (2) in seeking to withdraw from representing one of two co-defendants because of a conflict, Kraut refused the Judge's request to provide "the necessary information" in writing, including her fee arrangement with the client, so the court could "determine possible CJA eligibility" for appointment of counsel; and (3) she referred to this request as "absurd." Three days after orally holding Kraut in contempt and fining her $250, the Judge filed a written "summary contempt ruling" which both certified that the contemptuous conduct "was committed in the actual presence of the Court" and recited the facts underlying the earlier judgment, as required by Rule 42 (a), (supra) note 1. Within thirty days of that filing, Kraut noted her appeal, arguing that the evidence was insufficient for conviction.

A motions division of this court, in an unpublished order, sustained the timeliness of Kraut's notice of appeal filed thirty-one days after the hearing but only twenty-eight days after the trial court filed its written ruling. See D.C. App. R. 4 (b) (1) (requiring filing of notice of appeal "within thirty days after entry of the judgment or order from which the appeal is taken"). We have revisited this issue. See District of Columbia v. Trustees of Amherst College, 499 A.2d 918, 920 (D.C. 1985) (motions division's denial of motion to dismiss, without explicitly stating denial is "with prejudice," does not bar subsequent merits division from reconsidering denial). We conclude that the thirty-day appeal period does not begin until all the requirements of Rule 42 (a) have been met. Because Kraut filed her appeal twenty-eight days after the required Rule 42 (a) certification and recital of facts were entered of record, see (supra) note 1, her appeal was timely filed.

As to the merits, we conclude the record does not support the trial Judge's finding that Kraut refused to supply all the "necessary information" requested by the Judge. Accordingly, because the Judge cited three grounds for contempt, because the Judge indicated that all three were integral to his ruling, and because one of them fails for lack of evidentiary support, we must reverse the conviction and order dismissal of the charge. *fn2

I.

On July 26, 1988, appellant Kraut represented two criminal defendants at a status hearing in Superior Court: Prissie Williams-Godfrey (also known as Delores Blair) and Tobey Whitted. Three separate cases were pending against Williams-Godfrey; one was pending against Whitted. The government announced it would be willing to dismiss the charges against Whitted if the court granted its recently-filed motion to consolidate the three case against Williams-Godfrey. Kraut immediately interjected that her dual representation now created a. conflict of interest: as counsel to Williams-Godfrey, she intended to oppose the motion to consolidate, but, in doing so, she would be acting against the interests of Whitted. As a result, she concluded she no longer could represent them both. She asked Judge Wolf to grant her leave to withdraw from Whitted's case and to appoint counsel to represent him. The Judge agreed that Whitted needed separate counsel, and he began to consider what steps he should take before he could appoint counsel.

At this juncture, Judge Wolf and Kraut engaged in the following Discussion of Kraut's fee arrangement with her two clients:

THE COURT: Well, Ms. Kraut, presumably you would be returning a fee to Mr. Whitted.

MS. KRAUT: Well the fees are -- they're sort of combined, Your Honor.

THE COURT: Well, I think you ought to set it forth in a motion.

MS. KRAUT: Set what forth in a motion?

THE COURT: Your fee arrangements, because I don't know whether he qualifies for free legal --

MS. KRAUT: Well, if he could be interviewed, first of all, and secondly the Court --

THE COURT: No, no, -- now wait a minute, Ms. --

MS. KRAUT: Well, the Court already appointed a court-appointed lawyer for Mr. Whitted in another case; there's an assault case that I think is pending, or I don't know whether it's been disposed of or not, I am not representing him. Oh, I know what happened, Mr. Reilly is representing him on that as the Court will recall.

THE COURT: You see Ms. Kraut, this is the very problem that your joint representation creates and shouldn't create.

MS. KRAUT: Well the Court went through an inquiry --

THE COURT: Let me finish, let me finish. Yeah, okay --

MS. KRAUT: -- and everything was fine as far as the substantive offense is concerned, there are no conflicting defenses.

THE COURT: Let me finish. Right now, you have eliminated the free representation of Mr. Whitted in this case.

MS. KRAUT: Yes; free for the Court, you mean.

THE COURT: And you have short-circuited the CJA process in this case for him by entering a retained appearance.

MS. KRAUT: That's correct. I don't know about short-circuited, I don't know what the Court means by that.

THE COURT: Now, on that basis, I have to assume that he had enough money to hire counsel --

MS. KRAUT: He did not, somebody paid for him.

THE COURT: Let me finish.

MS. KRAUT: I'm telling the Court right now.

THE COURT: Let me finish.

MS. KRAUT: Fine.

THE COURT: I have to assume that he had enough money or arrangements to hire counsel in this case, and that you were paid.

MS. KRAUT: I was not by Mr. Whitted, and in fact I have not been paid by anybody on behalf yet of Mr. Whitted.

THE COURT: Would you stop interrupting.

MS. KRAUT: If the Court --

THE COURT: Stop it. If you do it again, I'm going to hold you in contempt of Court.

MS. KRAUT: Yes, Your Honor.

THE COURT: I will give you a chance to be heard.

MS. KRAUT: Thank you.

THE COURT: I am tired of your continuous ...


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