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Court of Appeal:
Judge’s Use of ‘Please’ Didn’t Signify Request, Was Order
$300 Sanction Imposed on Attorney Who Contacted Witness After Judge Dohi Said, ‘Please Don’t Contact Him Further’ Is Upheld; Allowable Communication Was Restricted to That Specified, Opinion Says
By a MetNews Staff Writer
A judge who said “please” in telling a criminal defense lawyer not to contact a witness who complained of the attorney harassing him was issuing a court order, not making a mere request, the Court of Appeal for this district has held, rejecting the contention that by then telling the witness that a lawyer for either side might get in touch with him to advise that further testimony was required did not confirm that compliance was optional.
The opinion, filed Thursday and not certified for publication, affirms a $300 sanction imposed by Los Angeles Superior Court Judge Gregory A. Dohi on Hermosa Beach attorney Thomas W. Kielty.
Kielty was representing a defendant, charged with robbery and assault with a deadly weapon. A prosecution witness had recorded the assaults on his smartphone, had shown the recording to police, but erased the recording after he was told it was not needed as evidence.
After he testified in court as to what he saw, and outside the presence of the jury, the prosecutor related to Dohi complaints to her by the witness as to pestering contacts by Kiely, and the witness himself expressed a desire not to be contacted further by the defendant’s lawyer.
Dohi declared:
“So, there you go. So, Mr. Kielty, [the witness] made his feelings very clear. He has a right not to be contacted any further, so please do not communicate with him any further. We’re done.”
The witness then asked if he would need to return to court and Dohi advised:
“You might get a call in the future from one side or the other, so hang tight. But you’re free to go today.”
Kielty subsequently sent the witness a text message (the opinion says it was dispatched “[l]ater that day” but the communication itself reflects a dispatch the following day), saying:
“Can you tell us the name you used on the Instagram account so we can try to retrieve the video from Instagram? Thanks. I apologize for the disrespect you mentioned yesterday. I’m just trying to do my job. Thanks, Tom Kielty.”
The witness, irate, reported the contact to the prosecutor, who told the judge. Dohi announced in court the prospect of a contempt proceeding.
Kielty protested at the time:
“Your honor directed me not to talk to him. I don’t think your honor ever said not to contact him. It would be a silly order to make because it was clear if he needed to be called back to court, he could be called back to court....”
At a later point in the trial, Dohi alluded to the previous instance of the lawyer “skirting my orders,” and Kielty responded:
“In terms of the no contact..., what I took away from that is, you know, do not try to speak to him directly or on the phone. It never occurred to me that it would be improper in the exercise of my role and the guardian of my client’s constitutional rights to subpoena witnesses, call them into court, present evidence, present a defense, that I would be unable to contact a witness to ask them a question or ask them to come into court via text message or email. I don’t consider that to be a blatant violation of your honor’s order. It certainly doesn’t rise to the level of contempt.”
Months after the acquittal of the defendant, Dohi imposed the monetary sanction pursuant to Code of Civil Procedure §177.5 for violating a court order, and Kielty appealed.
Perluss’s Opinion
Perluss wrote:
“Kielty argues the court’s language, ‘[P]lease do not communicate with [the witness] any further’ was merely a request, not an order. If the court had intended to order Kielty not to contact the witness, it would have used the term ‘order’ and would not have prefaced its comments with ‘please.’ Any ambiguity on this point was clarified, Kielty argues, when the court told the witness at the conclusion of his testimony he ‘might get a call in the future from one side or the other so hang tight,’ language suggesting Kielty could contact the witness. Neither of these arguments is persuasive.
“At the threshold, a trial court’s use of the word ‘please’ does not transform a court order into a request. As the trial court observed in rejecting the same argument at the sanctions hearing, the emphasis in such a circumstance is on the ‘don’t,’ not on the ‘please.’ Nor is the court’s failure to use the words, ‘I order you,’ dispositive. When, as here, the court directs a party on the record to act or refrain from acting, the court’s directive is an order.”
The presiding justice went on to say:
“Kielty’s reliance on the purported ambiguity created by the court’s comments to the witness at the conclusion of the witness’s testimony is also misplaced. At most the court’s comments suggested the defense could compel the witness to return. Nothing in the court’s statements indicated Kielty could contact the witness with substantive inquiries about his testimony without leave of court.”
He added:
“If Kielty believed, as he now asserts, the order infringed his ability to provide a defense, Kielty could have raised his objections to the trial court and sought leave of court to make his inquiry. He never gave the court the chance to address those concerns. Instead, he simply contacted the witness directly, believing that his inquiry was sufficiently innocuous as to not rise to the level of harassment. While Kielty’s assessment, no doubt sincere, may well have been reasonable, his actions—disregarding the court’s order—were not.”
Unconventional Aspects
The case is People v. Cubit, B292833.
There were two unusual features to that case. One was that the Los Angeles Superior Court was designated as an amicus curiae on behalf of the “People”—an uncustomary role for a court—and the other was that Perluss’s Div. Seven countermanded a determination by the district’s administrative presiding justice as to how the case was to be denominated.
The notice of appeal was filed on Aug. 31, 2018 and on Sept. 27, Kielty filed an application in the Court of Appeal for a fee-waiver based on the indigency of his client, which was granted four days later. On Sept. 28, he filed a motion calling for the matter to be treated as a criminal appeal.
Catching on to the fact that the appeal was solely for the potential benefit of Kielty, not his acquitted client, the administrative presiding justice, Elwood Lui of Div. Two, on Oct. 18 issued an order vacating the order granting the fee-waiver and naming the case “Kielty v. Superior Court,” with the Los Angeles Superior Court being designated the respondent.
In that capacity, as a designated party, the Superior Court appeared.
In a footnote, Perluss explained:
“For purposes of this opinion…, we have captioned the case to retain the names of the plaintiff and defendant in the underlying case, as directed by the California Style Manual…and as done in other appellate cases.”
He said that because, under decisional law, the Superior Court “cannot be a party in a direct appeal from a case it has tried,” its brief would be treated as that of an amicus.
Attorneys on appeal were Kielty, representing himself, and the Los Angeles Superior Court’s court counsel, Frederick R. Bennett.
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