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Lawyers’ convictions reversed

Two Virginia Beach lawyers and their law clerk have won reversals of summary contempt convictions that carried jail time.

In Scialdone v. Commonwealth (VLW 008-7-199), the Virginia Court of Appeals said the lawyers’ conduct in apparently proffering a fraudulent document at a criminal trial offered grounds for contempt findings.

But the trial judge’s extra efforts to try and pin down who altered the document meant the lawyers and the clerk were entitled to a hearing before being locked up.

A 44-page opinion by Judge Larry G. Elder detailed the duel that arose during the trial of Frankie Dulyea between Virginia Beach Circuit Judge Patricia L. West and the law firm of Scialdone & Taylor.

When Dulyea appeared before West July 12, 2006, Claude Scialdone and his law clerk Edward Jones were in court to defend Dulyea on charges that stemmed from online conversations with an undercover cop posing as a pubescent girl.

Scialdone presented a document that purported to show age-limit rules for the Internet chat room in which Dulyea contacted the cop, but the document was dated July 11, the day before trial started. On the prosecutor’s objection, West told Scialdone that if he wanted to use the document to question the officer, he would have to use a document showing the rules in place in 2005, when the chat happened.

Later, when Scialdone questioned Dulyea, he introduced a document with the same set of rules as earlier, only with no print date on the bottom. When questioned by the court, Scialdone said he printed off the rules again because he had been unable to locate the original document, which had been supplied by Dulyea’s father.

West was skeptical. She noted it would be very easy to just “white out” the bottom print date and “run a copy” of the same document offered originally on July 12. She noticed a different screen name on the document – wndydpooh – and Scialdone admitted his secretary was named “Wendy.”

West gave Wendy five minutes to get to court. Scialdone’s partner Barry Taylor left a “roomful of people” at the firm and hastened to court with secretary Wendy Suttlage.

West put everybody under oath. Suttlage acknowledged printing out the document with her screen name the day before trial at Taylor’s request, but denied altering the document. The judge sent a court deputy back to the firm to watch over Suttlage as she attempted to duplicate her efforts to print out the document.

It didn’t help Scialdone and company when the judge noticed one of the documents before the court carried the screen name “westisanazi,” which the law clerk admitted he had used.
The judge told the group: “[S]omebody better take the fall or everybody is going to take the fall for” the phony document.

After Dulyea’s trial ended, West levied the maximum fine under Va. Code § 18.2-456: a $250 fine and 10 days in jail each for Scialdone, Taylor and Jones. Scialdone and Jones were booked July 16. Taylor had a different booking; he got permission to defer his sentence to get married and take a honeymoon. All three men served portions of their sentences before the Virginia Supreme Court granted a stay of execution.

In a 2-1 decision, the Court of Appeals reversed all three convictions. Because West went beyond what happened in the courtroom, the three men were entitled to notice, counsel and a hearing before being held in contempt.

Here is what it takes to punish a lawyer under the summary contempt statute: The misconduct must occur in open court, in the presence of the judge, and disturb the court’s business. All of the essential elements of the misconduct have to be “under the eye of the court” and actually observed by the judge.

When the contempt deals with an offense not committed in the presence of the court, procedural protections are in order, Elder wrote.

Trial courts have to guard against confusing offenses to their sensibilities with obstruction to the administration of justice, Elder said, quoting from a 1958 U.S. Supreme Court opinion.
Judge D. Arthur Kelsey dissented in Scialdone, saying the appellants had not preserved their claim.

The new appellate opinion makes clear, in plain understandable language, the difference between direct and indirect contempt, said Alexandria lawyer Marvin D. Miller, who represented the appellants.

Miller said it’s unclear whether the prosecution will retry these cases, given the proof problems that plagued the court the first time around.

While serving his three-year sentence on the chat-room charge, Dulyea was acquitted last year of soliciting someone to kill Judge Patricia West. On Sept. 11, 2007, the Virginia State Bar suspended Scialdone’s law license on impairment grounds.

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