Opinion
Civil No. 00-1803 WJ/LCS
March 6, 2003
ORDER TO SHOW CAUSE
THIS MATTER comes before the Court sua sponte. Trial on this case was first heard on December 17, 2002. Due to a mistrial, trial was reset for January 8, 2003, with jury selection to take place on January 7, 2003. Notice regarding the new settings was sent to counsel on December 23, 2002. Docs. 162, 163. On January 6, 2003, on the day prior to jury selection, Mr. Barry Byrnes, counsel for Plaintiff, filed a motion for continuance based on the unavailability of Plaintiff's wife and two witnesses. Later that day, Mr. Byrnes made arrangements to obtain a transcript of testimony of one of the witnesses, Plaintiff's treating physician, which could not be completed in such short notice.
Mr. Byrnes sent a copy of the motion by fax to the Court after the close of business on Friday, January 3.
On January 7, 2003, the morning set for jury selection, I determined that, based on the complete unavailability of Plaintiff's expert witness, either by trial transcript or in person, Plaintiff's due process rights required that the trial be continued. At the same time, I took the opportunity to apprise Mr. Byrnes that the Court would be issuing an order to show cause as to why he should not be sanctioned and possibly held in contempt for his conduct during the course of the first trial, as well as for his actions related to the handling of this case which had caused unnecessarily delay in the court's already burdened trial docket.
A jury was also to be selected for at least one criminal case which could be tried that week, depending on the status of the civil case.
The Court's Order vacating trial, Doc. 171, also sets forth findings regarding why the Court vacated the January 7, 2003 trial.
Mr. Byrnes's behavior which is the subject of this Order spans the several weeks before, during and after the first trial in this case:
This case was originally assigned to U.S. District Judge C. Leroy Hansen. While Judge Hansen ruled on all pretrial motions and all pretrial matters, the case was tried in Las Cruces by the undersigned at Judge Hansen's request. Since the first trial ended in a mistrial as a result of a "hung jury," I had the case permanently assigned to my trial docket for retrial.
(1) Despite a two-week notice, Mr. Byrnes' failure to make adequate and timely provisions for the availability of his witnesses for the second trial, and his eleventh-hour filing of a motion to continue denied his client of his day in court. Doc. 168. As a result of the Court's having to address the motion for a continuance, selection of two juries for criminal trials was delayed that morning by at least thirty minutes. Mr. Byrnes came to federal court on January 7, 2003 utterly unprepared to select a jury in his case. His rationale is that the Court was not intending to proceed with his case that day because "[t]here were no prospective jurors in the courtroom as Judge Johnson apparently had another matter on his morning docket." Doc. 176, ¶ 13.
Whether or not Mr. Byrnes realizes that prospective jurors remain in a jury assembly room prior to any selection process, his assumption was not only incorrect but unfounded.
(2) During the discovery period, Judge Leslie Smith sanctioned Mr. Byrnes personally for his "obstructionist tactics and unprofessional behavior" toward the Court as well as opposing counsel, finding his behavior to be a violation of the Lawyer's Creed of Professionalism of the State Bar of New Mexico. Doc. 92. Mr. Byrnes was ordered to pay defense counsel $1,903.11 for fees and costs incurred in attending a scheduled deposition in which the witness (Mr. Gillespie) did not appear and in which a notice of non-appearance was not filed, and $1000.00 to be paid to the Court as a fine for engaging in unprofessional behavior by failing to cooperate with opposing counsel and failing to comply with the Orders and Rules of the Court. Mr. Byrnes still has not paid either of these fines.
Under D.N.M.LR-Civ. 83.10, an attorney may be disbarred "sua sponte or upon recommendation by the State Bar of New Mexico Disciplinary Board under D.N.M. LR-Civ. 83.9," which requires attorneys appearing in this district to comply with the Rules of Professional Conduct.
Mr. Byrnes appealed Judge Smith's Order to U.S. District Judge Leroy Hanson, who overruled the objections. Doc. 108. Mr. Byrnes has further appealed to the Tenth Circuit, where the matter is now pending. Also, payment of the monetary amounts imposed was a condition precedent to the Court's lifting sanctions regarding the preclusion of witness testimony. Because Mr. Byrnes never paid the amount, that witness was not allowed to testify, or to have his deposition taken. Doc. 111.
(3) Mr. Byrnes exhibited conduct during the first trial in this case which could best be characterized as inappropriate and offensive, demonstrating flagrant disrespect for the Court and court staff. This conduct includes (a) making an obscene digital gesture meant to show disdain for Court rulings;(b) refusal to adhere to court rulings and admonitions. See, e.g., Trial Transcript, of Proceedings, Dec. 17-18, 2002, at 16:5-20; Transcript of Proceedings of Dr. Delahoussaye's Testimony at 71; (c) making rude and obnoxious comments directed toward court staff, accusing them of mishandling Plaintiff's exhibits for which he was responsible, e.g., preparing trial exhibits for submission to the jury, and blaming court staff for the presence of witnesses in the courtroom after the witness rule had been invoked. Tr. at 18:10-14
The undersigned did not personally observe the digital gesture; however, a court security officer observed Mr. Byrnes making this gesture after the Court had ruled on an objection unfavorably to Mr. Byrnes.
References to the trial transcript will be noted as "Tr." followed by specific citation. Portions of the transcript of the jury trial held December 17-18, 2002, were filed with the Court on February 18, 2003. The transcripts of the testimony of both Dr. Brian Delahoussaye and Gloria Pettes were filed on February 13, 2003 and lodged in separate file folders. Unless otherwise indicated, "Tr." refers to the transcript of the jury trial filed on February 18, 2003.
(4) Plaintiff's counsel gratuitously accused the Court of ex parte consultation with defense counsel, and of bias toward counsel for Defendant. Tr. at 21:9-13 ("I think you two have conferred and ruled."); Tr. at 27:15-22 ("If you feel it's going to help him").
These comments were made during trial, but outside the presence of the jury.
(5) Mr. Byrnes' representations to Judge Johnson regarding the number of days set aside for trial were misleading. Counsel's insistence that four days had been allotted for trial was based on an estimation in the original Pretrial Order which contained counsel's estimation of four days for trial. Although Judge Hansen signed the Pretrial Order on October 11, 2002 (Doc. 126), subsequent orders entered by Judge Hansen significantly narrowed the party defendants and the claims that would be tried to the jury. Attachment A (official transcript of pretrial conference) and Minutes of Pretrial Conference, Doc. 151 at 1. Thus, given the reasons for the Court's reduction of trial time, Mr. Byrnes' statement that Judge Hansen allotted four days for trial was misleading as well as inaccurate. Tr. at 24-25.
While the Court has no idea of whether Mr. Byrnes has been involved in other contempt proceedings in federal court, Mr. Byrnes is not a complete stranger to contempt proceedings. In Byrnes et al. v. Baca, 132 N.M. 718 (Ct.App. 2002), the state Court of Appeals affirmed contempt sanctions against Mr. Byrnes for behavior which the trial court stated was "`obstructive, disruptive, and interruptive'" of the proceedings." 132 N.M. at 723.
Although the Court of Appeals affirmed the contempt order and sanctions, the court's suspension proceedings were held to violate Mr. Byrnes' due process rights. 132 N.M. at 726.
This Court takes a dim view of attorneys who engage in conduct which not only disrupts the efficiency of an already overloaded court docket, but also which reflects negatively on a profession which is constantly under public scrutiny and frequently the target of undeserved criticism. Accordingly, a hearing will be set before the Honorable Bruce D. Black on Monday, April 14, 2003, at 10:00 A.M. at the United States Courthouse, 2nd floor courtroom, Las Cruces, New Mexico, in which Plaintiff's counsel, Mr. Barry J. Byrnes is ordered to appear and show cause as to why he should not be sanctioned for the above cited behavior. Such sanctions may include (i) being held in contempt of Court for failure to abide by previous Court orders, (ii) imposition of monetary sanctions and (iii) entry of an order barring Mr. Byrnes from practicing in the United States District Court for the District of New Mexico.
Further, defense counsel, Mr. Matthew P. Holt, Esq. is directed to appear and to be available should the Court require his testimony on any of the matters of which he has knowledge.
IT IS SO ORDERED.