Woman wins appeal of contempt-of-court charge

Jan. 08, 2014 @ 07:19 PM

A N.C. Court of Appeals panel says a visiting judge was wrong in a Durham case to throw a woman in jail for a month for having failed to show up for a hearing to answer a trespassing charge.

Former Wake County Superior Court Judge Abe Jones erred by failing to give the woman a chance to defend herself from a contempt-of-court order, the appeals panel said in a unanimous ruling issued this week.

The woman, Bibian Nwanguma, served all 30 days of the jail sentence in late summer of 2012. A jury later found her not guilty of the trespassing charge.

The panel ruling came too late to keep or get her out of jail, but takes the contempt-of-court charge off her record.

“There are some potential scenarios where this could affect her later on, so having this reversed could be beneficial to her,” said John Wait, the Winston-Salem lawyer who represented Nwaguma on appeal.

Wait did, however, lament that the Court of Appeals panel chose to issue its ruling as an “unpublished” opinion, meaning it’s not binding precedent for other judges.

It would’ve been better to “tell judges they can’t do this sort of thing,” he said.

Nwanguma wound up behind bars after she didn’t show up for an afternoon hearing on her trespassing case.

She had been in court that morning, and Jones told her to come back at 2:30 p.m.

But she didn’t make it. Her trial lawyer, Keith Bishop, told Jones she was “taking several medications for a disability,” and “expressed doubt as to her ability to fully understand the proceedings against her.”

The Court of Appeals ruling turned on the distinction between what lawyers call “direct” and “indirect” contempt.

Direct contempt occurs in plain view of the judge and can be punished immediately because the judge “needs no other testimony” to act, appeals Judge Mark Davis said for the panel.

But indirect contempt, occurring outside the presence of a judge, by statute can be punished only after the target of the order has an opportunity to offer a defense, Davis said.

Here, Nwanguma’s failure to show “obviously was not an overt act that occurred in [Jones’] presence,” Davis said in a ruling joined by fellow Judges Robert N. Hunter Jr. and Sam Ervin IV.

Punishment in a case of indirect contempt also requires the judge to file a written order explaining the reasons for action, including a finding that its target had engaged in “willful disobedience,” Davis and his colleagues said.

Jones didn’t issue a written ruling on Nwanguma’s case, justifying his decision from the bench by telling lawyers that she’d committed “a violation of a court order in the court’s presence.”

He added that he thought he was “doing her a favor, really,” or at least what any other judge would do.

“I can’t have people coming in my court and I give them a direct order and they just simply don’t do it,” Davis quoted Jones as saying.

Lawyers from state Attorney General Roy Cooper’s office agreed and had asked the Court of Appeals to uphold Jones’ decision. They said Jones gave Nwanguma a chance to be heard, and had the “direct knowledge” needed to jail her.

“It cannot be that a defendant could avoid being held in contempt for failure to appear merely by the expedient of not coming into the courtroom,” they said in a brief. “That would make a mockery of the judicial authority and violate all the principles that the contempt power is meant to enforce.”

Nwanguma’s trespassing case started in District Court, winding up in front of Jones after she appealed a guilty verdict handed down by District Judge Pat Evans.

The Court of Appeals normally wouldn’t have had jurisdiction in the case because Bishop – who ran unsuccessfully for district attorney in 2006 and 2008 – missed a 14-day deadline for appealing Jones’ contempt order.

But the panel at Wait’s urging used a rarely-issued type of writ to override what Davis called the trial lawyer’s “incorrect calculation of the deadline” for filing the notice.

Bishop turned it in nearly three months late.

“She shouldn’t have been locked up,” Wait said, adding that an immediate appeal might’ve produced an “emergency stay” to shorten her time behind bars.

Jones is no longer a judge, having lost a re-election bid in Wake County in 2012 after Wake’s senior Superior Court judge helped recruit a candidate to run against him.

The Court of Appeals panel included two Democrats in Davis and Ervin and a Republican in Robert N. Hunter Jr.