Argued June 12, 2012
Appeal from the Superior Court of the District of Columbia (CPO-3234-09) (Hon. José M. López, Trial Judge)
Anna B. Scanlon, appointed by this court, was on the brief for appellant.
Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Assistant United States Attorney at the time, were on the brief, for appellee.
Jaclyn S. Frankfurt, with whom James Klein was on the brief, on behalf of the Public Defender Service as amicus curiae, in support of appellant.
Joan S. Meier was on the brief for amici curiae, Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), Survivors and Advocates for Empowerment (SAFE), AYUDA, D.C. Coalition Against Domestic Violence (DCCADV), George Washington University Law Professor Laurie Kohn, and Catholic University Law Professor Catherine Klein, in support of appellee.
Before Thompson and Easterly, Associate Judges, and Nebeker, Senior Judge.
Easterly, Associate Judge:
At the time this case was litigated, it was understood to be lawful in the District of Columbia for an individual, acting in his or her personal interest, to prosecute another individual for criminal contempt based on an alleged violation of an intrafamily Civil Protection Order ("CPO-). And because a private party could prosecute alleged CPO violations on his or her own initiative, such prosecutions could be used for private feuds: A defendant in one case could turn the tables on the complainant-prosecutor and retaliate in kind. This case presents just this sort of tit-for-tat "justice.”
Patrice Taylor, the defendant in the underlying case, and Kimberly Hawkins, the complainant-prosecutor, are unrelated and have never lived together; their only connection is through Sydney Woodruff, a man with whom both women were at different times romantically involved. Their dispute appears to have been of their own making — one in which they engaged, in the trial judge's words, as "a game."Ms. Taylor and Ms. Hawkins obtained intrafamily CPOs against each other on the same day in the fall of 2009. Each subsequently alleged that the other had violated the no-contact terms of their respective CPOs by making phone calls and sending text messages. Ms. Taylor brought criminal contempt charges against Ms. Hawkins first and had successfully prosecuted Ms. Hawkins by the time they returned to court with roles reversed in the case now on appeal — Ms. Hawkins, awaiting sentencing, prosecuted Ms. Taylor on contempt charges. By the conclusion of the case, eleven months and at least ten court dates later, both women were actively initiating and defending additional criminal contempt charges vis-à-vis the other for violating the terms of their respective CPOs. The trial judge, who had tried to take various steps throughout the proceedings to "expedite"matters, including urging "settlement, "was reduced to a frustrated sideline observer, declaring that the case was "an embarrassing mess.”
Since Ms. Hawkins secured Ms. Taylor's conviction, the decisional law has changed significantly. In In re Robertson, 19 A.3d 751 (D.C. 2011) (Robertson II), this court held that contempt prosecutions arising out of the violation of an intrafamily CPO are not private actions and instead must be brought "in the name [of] and pursuant to the power of the United States.” id. at 755, the sovereign body of which the District is a part. This court subsequently held in In re Jackson, 51 A.3d 529 (D.C. 2012) that "when the need arises for a prosecutor in an indirect criminal contempt matter relating to CPO violations in intrafamily offense cases, "a trial judge must go through a two-step process to ensure that neutral counsel, representing the government, prosecutes the offense. Id. at 531. It must "first ask" one of the District's two institutional, public prosecutor's offices — the United States Attorney's Office (USAO) or the Office of the Attorney General (OAG) — "to prosecute the criminal contempt in the name of and pursuant to the sovereign power of the United States. "Id. "[I]f both . . . decline to prosecute, "a trial judge may then "appoint a private attorney to prosecute the criminal contempt in the name and on behalf of the United States." Id . To satisfy due process guarantees, any court-appointed counsel must be "disinterested, "just as a government prosecutor in a CPO contempt case would be. Id. at 531, 541; see infra note 13. Perforce, Robertson II and Jackson do not permit a complainant proceeding pro se to prosecute a criminal contempt action as Ms. Hawkins did.
That Ms. Taylor did not object to her then-authorized prosecution by Ms. Hawkins does not foreclose our review because we conclude that Ms. Taylor has satisfied our test for plain error. The absence of counsel representing the government at Ms. Taylor's criminal trial is not only an obvious defect under Robertson II and Jackson, but also a structural one that compromised the fairness, integrity, and public reputation of judicial proceedings. As a consequence, we exercise our discretion to reverse Ms. Taylor's contempt conviction.
I. Procedural History
The procedural history of this case comprises but one chapter in an ongoing feud between Ms. Taylor and Ms. Hawkins. We present this history in some detail because why and how this case was prosecuted, and in particular how the resources of the court were used, is pertinent to the disposition of this appeal.
Ms. Taylor and Ms. Hawkins, each in their early twenties, had no direct or familial relationship with each other; they only came into contact because they were both, at one time, romantically involved with Mr. Woodruff. Their dispute began with (and never went beyond) intemperate and provocative communications. These communications, initially limited to the phone and electronic media, prompted the women each to obtain CPOs against the other, at the same proceeding, on September 24, 2009. (Before that date, they had never met in person.) Each woman consented to the issuance of the other's CPO without admissions; thus the court did not make a "good cause" finding. See D.C. Code § 16-1005 (c) (2001 & Supp. 2009).
Even at this brief proceeding, the enmity and distrust between the two women were evident. At the conclusion of the proceeding, Ms. Taylor asked the judge if "there [was] a way that I can get in any trouble if anything happens to kick off as I might leave this courtroom?" and Ms. Hawkins asked the judge if the Marshals or court personnel would serve as an "escort service" as she left the courthouse. These questions prompted the judge to remark, "I think — I think you're adults, right?" and "You can handle this? Okay.”
The judge's optimism proved unfounded. Three months later, on the last day of 2010, Ms. Taylor filed a motion to hold Ms. Hawkins in contempt for violating Ms. Taylor's CPO by posting messages on Ms. Taylor's Facebook page.Ms. Hawkins was arraigned on that charge a week later. On the same day that Ms. Hawkins was arraigned, Ms. Hawkins filed her own contempt motion, alleging Ms. Taylor had violated the conditions of Ms. Hawkins's CPO by contacting Ms. Hawkins via phone and text message and requesting to be "friends" with Ms. Hawkins's new boyfriend on Facebook. Ms. Hawkins's Motion to Adjudicate Criminal/Civil Contempt was filed under the same case number as her CPO and captioned as "Kimberly Hawkins, Petitioner, vs. Patrice Taylor, Respondent. "The three-page motion, filed on what appears to be three copies of the same court-issued form, included boxes to check if copies had been sent "to U.S. Attorney" or "to Corporation Counsel." All of the boxes were left blank.
Shortly after Ms. Hawkins's arraignment on Ms. Taylor's contempt charges, Ms. Taylor was arraigned on Ms. Hawkins's contempt charges and entered a plea of not guilty. Ms. Hawkins represented herself. The trial judge then addressed Ms. Hawkins to "explain to [her] what's going on.”
The trial judge informed Ms. Hawkins that Ms. Hawkins had charged Ms. Taylor with "a criminal offense, "and that Ms. Taylor, as the defendant, would thus have a right to counsel. But, the judge explained to Ms. Hawkins, "because of the way the law is written, we cannot appoint an attorney to you." The judge suggested that Ms. Hawkins "try to see if you could get an attorney from the legal clinics to help you out; give you some guidance, et cetera." (He later advised Ms. Hawkins to "go to the Domestic Violence Unit [of the USAO]" and "ask to talk to a prosecutor to explain your situation.”) Having informed Ms. Hawkins that she was on her own, the judge instructed her that "[w]hen we come back for the trial, it will be for you to bring with you every proof you have indicating what you say she did to you." Alternatively, the judge suggested that Ms. Hawkins and defense counsel "talk to see if [you] can negotiate a settlement.”
After hearing this explanation from the trial judge, Ms. Hawkins noted that Ms. Taylor's contempt case against her was scheduled for trial in six days, and she asked if the cases could be "combine[d]." As Ms. Hawkins viewed the proceedings, consolidation made sense because "I have mine against her; she has hers against me." After determining that Ms. Taylor's defense counsel could not prepare for trial in less than a week, the trial judge denied this request.
At the close of Ms. Taylor's arraignment, Ms. Hawkins alleged that Ms. Taylor had yet again violated the CPO the day before. The trial judge interjected and directed both Ms. Hawkins and Ms. Taylor to "start behaving"
themselves; he further warned them that "[s]omebody is gonna wind up going to jail if you . . . don't behave like mature adults.”
Before the parties returned for trial on the contempt charges brought by Ms. Hawkins, Ms. Taylor's contempt case against Ms. Hawkins went to trial and Ms. Hawkins was convicted. Sentencing was scheduled for the date of Ms. Hawkins's trial against Ms. Taylor but had to be continued because Ms. Hawkins's attorney was absent.
Ms. Hawkins's case against Ms. Taylor proceeded, however. The judge began Ms. Taylor's trial by explaining to Ms. Hawkins the basics of trial procedure. The judge reiterated to Ms. Hawkins that, even though Ms. Taylor would have counsel "because this is a criminal matter, ""[i]t will be you representing yourself.""[T]o expedite matters, "however, the judge informed Ms. Hawkins that he would "ask . . . a series of questions to help her present the evidence that is most favorable to [her] based on [her] allegations." "After [Ms. Hawkins] answer[ed] all [his] questions, "the judge explained to Ms. Hawkins that she would be cross-examined by defense counsel. The judge told Ms. Hawkins that she would then have an opportunity "to respond to or clarify anything that you think needs clarification based on the questions that [defense counsel] asks you." In the event Ms. Taylor chose to testify, the judge explained to Ms. Hawkins that "just like the lawyer asked you questions, you have the right to ask h[er] questions, but again, you're not trained on how to ask those kind of questions . . . so I'll ask you if there is any kind of question you want me to ask [her] to see if there's any question that's appropriate and if so, I will ask her the questions. "Finally, the judge explained that "[o]nce we are done, each side will get to have what is called a closing argument.”
The trial proceeded in the manner described. There were no opening statements. The only witnesses to testify were Ms. Hawkins and Ms. Taylor, each of whom testified that she was the victim of harassment by the other. The judge began the trial by conducting a direct examination of Ms. Hawkins from the bench. Ms. Taylor's counsel cross-examined her and the judge conducted the redirect. Ms. Taylor then took the stand to testify in her defense. As promised, the judge assisted Ms. Hawkins in her cross-examination of Ms. Taylor by asking Ms. Taylor questions suggested to the court by Ms. Hawkins. After Ms. Taylor completed her testimony, the judge informed Ms. Hawkins that she could also "make a statement on your defense or disput[e] any other things she said" "because you are not able to articulate the questions." As authorized by the judge, Ms. Hawkins returned to the stand and made rebuttal statements. The parties then gave closing arguments, but the judge took the admittedly "unusual" step of directing defense counsel to go first "to give [Ms. Hawkins] the opportunity to listen to an attorney give a closing argument." The judge found Ms. Taylor guilty of one count of criminal contempt relating to a phone call from Ms. Taylor to Ms. Hawkins.
In presenting his findings, the trial judge remarked that "[i]n many ways, the truth of what happened has long disappeared. "The only evidence was "[i]n the mind of Ms. Hawkins and in the mind of Ms. Taylor" and, as a consequence, the trial judge's fact-finding turned entirely on "the demeanor of the parties. "The judge said he relied on" how you two behave[d] on the witness stand, how you two behave[d] while the other one was on the witness stand, the expressions each have had as the other one testified, the history of the case, the animosity that there is or the animosity that there is not. "The judge then noted that it was "clear" there was mutual animosity:
I mean there is no denying that these two young ladies have been feuding way back when, since at least July of 2009 . . . and they both testified that the other was sending the other text messages, dirty messages, harassing calls. So, you are both capable of doing this and you have both done it to each other. I don't have any doubt about that and I have [to] proceed with that in mind.
The judge concluded the trial by noting that "[t]his is a sad situation" because "both" Ms. Hawkins and Ms. Taylor viewed the proceedings "as ...