The Utah Court of Appeals has reversed a lower court ruling holding attorney D. Gilbert Athay in contempt of court for failing to show up for the jury trial of a man he was defending against burglary charges.
Judge Pamela Greenwood, writing for the unanimous three-judge panel, said that regardless of the validity of Athay's claim that he was detained in Tonga to take depositions, the attorney nonetheless had not been afforded proper due process."To be convicted of such a charge, the defendant first must receive notice, the right to counsel if requested, the right to confront witneses and the right to offer testimony," Greenwood wrote. "Athay was informed of the charges and accompanied by counsel, but the court did not allow the testimony of witnesses or evidentiary procedures associated with the offer of testimony."
Athay represented defendant Lane B. Halverson, who was to be tried for burglary and other felony counts on May 13, 1986. In early May, Athay was in Tonga taking depositions scheduled to be completed on May 9. The depositions took more time than expected and Athay's secretary informed the court he could not return for the trial. The judge would not continue the trial and held Athay in contempt when he failed to appear.
Athay proffered letters and documents concerning his detention in Tonga and the judge held a hearing on the matter but did not accept evidence, deeming it unnecessary. Athay was fined $300.
Athay was convicted of "direct" contempt, which is committed in the immediate view of the court, instead of indirect contempt, which occurs outside the courtroom and so can be adjudicated only after notice and an evidentiary hearing.
"Athay's conduct occurred outside of the court's view, because it consisted of his absence from the court," Greenwood said. " . . . Without intimating any opinion on whether the reasons for Athay's absence were sufficiently compelling, we find that the court erred in convicting Athay without hearing evidence and in finding it unnecessary to hear evidence in such a proceeding."