{
  "id": 1893821,
  "name": "Jeff ROSENZWEIG v. Floyd J. LOFTON, Circuit Judge, Pulaski County Court, First Division",
  "name_abbreviation": "Rosenzweig v. Lofton",
  "decision_date": "1988-05-31",
  "docket_number": "88-17",
  "first_page": "573",
  "last_page": "585",
  "citations": [
    {
      "type": "official",
      "cite": "295 Ark. 573"
    },
    {
      "type": "parallel",
      "cite": "751 S.W.2d 729"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 649,
    "char_count": 16785,
    "ocr_confidence": 0.917,
    "pagerank": {
      "raw": 2.4625007160434246e-07,
      "percentile": 0.8056782461062402
    },
    "sha256": "32fd764fca57a9b287b0311d193e23ca4b494dc747fccb70cc54efa9b41de24f",
    "simhash": "1:10c0c922f7ed422f",
    "word_count": 3080
  },
  "last_updated": "2023-07-14T18:11:27.354550+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Jeff ROSENZWEIG v. Floyd J. LOFTON, Circuit Judge, Pulaski County Court, First Division"
    ],
    "opinions": [
      {
        "text": "Steele Hays, Justice.\nThis is an appeal from an order finding the appellant, Jeff Rosenzweig, in contempt of court. The Honorable Floyd Lofton, Circuit Judge, imposed a fine of $500 from which Mr. Rosenzweig has appealed. Jurisdiction in this court attaches under Rule 29(1 )(h) of the Rules of the Supreme Court and Court of Appeals. We find no basis for the trial court\u2019s action and, accordingly, we reverse.\nJudge Lofton appointed Mr. Rosenzweig to represent Michael Neal on a charge of aggravated robbery. Rosenzweig filed a pretrial motion to suppress an in-court identification of the accused by a witness to the crime. A hearing on the suppression motion resulted in Mr. Rosenzweig being found to be in contempt. We think it necessary to quote at some length from the record, as it demonstrates, we believe, the absence of any disrespect or insolence which could sustain a finding of contempt. When Mr. Rosenzweig asked an investigating officer why no live line up was conducted, the following occurred:\nTHE COURT: You want him to conduct one?\nMR. ROSENZWEIG: Yeah.\nTHE COURT: It\u2019s not too late. If you want him to conduct one, we will.\nMR. ROSENZWEIG: That\u2019s fine.\nTHE COURT: Well, you know, just get off of this and we\u2019ll have you conducted one.\nMR. ROSENZWEIG: That\u2019s fine with me.\nTHE COURT: Fine.\nMR. ROSENZWEIG: Okay.\nTHE COURT: You know \u2014 What is it set for trial?\nMR. ROSENZWEIG: Next week. We can have it any time.\nTHE COURT: You\u2019ve waited a long time but we \u2014\nMR. ROSENZWEIG: Well, I was appointed on this case, your Honor \u2014\nTHE COURT: Okay. We\u2019ll try to get it done. (T. 41).\nMR. ROSENZWEIG: \u2014 you know, this summer. I have never heard of Mr. Neal before you appointed me because Mr. Laster had a conflict.\nTHE COURT: Well, you know, that\u2019s not a problem. I\u2019m not concerned about that.\nMR. ROSENZWEIG: If we\u2019re going to have a live line up, then I\u2019m not going to pursue this motion.\nTHE COURT: Well, then we\u2019re not going to have a live line up. You can go on with this.\nMR. ROSENZWEIG: Judge \u2014\nTHE COURT: I\u2019m just trying to accommodate you. I\u2019m not buying your argument, Jeff.\nMR. ROSENZWEIG: Judge, here is the situation. Let me explain to you why I don\u2019t \u2014\nTHE COURT: I don\u2019t care.\nMR. ROSENZWEIG: Well, I\u2019d like to say for the record \u2014\nMR. DOUGLASS: This just goes to credibility anyway.\nMR. ROSENZWEIG: I\u2019d like to state for the record.\nTHE COURT: Go on. Can you do it after we get through?\nMR. ROSENZWEIG: No, sir, because I think it\u2019s very important right now.\nTHE COURT: Well, I\u2019m not going to pay any attention to it.\nMR. ROSENZWEIG: If you will just listen to me.\nTHE COURT: I\u2019m not going to pay any attention to it, Jeff. Go on.\nMR. ROSENZWEIG: Will the Court please listen to me and let me explain.\nTHE COURT: Have I got any choice?\nMR. ROSENZWEIG: Yes. No. You do but \u2014 The situation is this: If we\u2019re going to have a live line up \u2014\nTHE COURT: We\u2019re not going to have any. You haven\u2019t shown any prejudice.\nMR. ROSENZWEIG: Judge \u2014\nTHE COURT: I offered that as an accommodation to you.\nMR. ROSENZWEIG: And we\u2019d love to have one.\nTHE COURT: Well, then do it.\nMR. ROSENZWEIG: Well, we\u2019ll need six people and have it down at the Police Department.\nTHE COURT: Well, they\u2019ll do that for you, Jeff.\nMR. ROSENZWEIG: Okay.\nTHE COURT: I\u2019m not in the business of conducting line ups.\nMR. ROSENZWEIG: Okay, and, if we\u2019re going to have that \u2014\nTHE COURT: We\u2019re not going to have that.\nMR. ROSENZWEIG: I thought \u2014\nTHE COURT: Because you want to stop this proceeding now.\nMR. ROSENZWEIG: If you\u2019ll let me explain. (T. 43)\nTHE COURT: I\u2019m trying to, Jeff.\nMR. ROSENZWEIG: Okay. Thank you. Please \u2014 If the Court would please not interrupt me.\nTHE COURT: If I thought it would be effective, I would.\nMR. ROSENZWEIG: Our position is this: If we\u2019re going to have a \u2014 The person who would be viewing that live line up, which we would like to have, is outside the courtroom at this time. What I don\u2019t want to do is have her view Mr. Neal and \u2014 Mr. Neal here all by himself and then go view a live line up. If we have a live line up, then I will cease and drop this motion.\nTHE COURT: I\u2019m not going to do that, Jeff. You\u2019re not going to run the Police Department\u2019s way of doing business. Now, if you don\u2019t want to run this case the way it is, just let me know and I\u2019ll relieve you and I\u2019ll appoint Jim Clouette. Now you\u2019re just fishing and blowing smoke.\nMR. ROSENZWEIG: No, sir, I\u2019m not.\nTHE COURT: Do you want to be relieved?\nMR. ROSENZWEIG: I\u2019d like \u2014\nTHE COURT: Do you want to proceed, be relieved or be quiet?\nMR. ROSENZWEIG: I \u2014 if I understand \u2014\nTHE COURT: Do you want to proceed, be relieved or be quiet? (T. 44)\nMR. ROSENZWEIG: I\u2019d like \u2014 Judge, I\u2019m not sure I understand what the Court\u2019s ruling is. May I ask you what the Court\u2019s ruling is?\nTHE COURT: What\u2019s the question?\nMR. ROSENZWEIG: The question is: Are we going to have a live line up?\nTHE COURT: No. I\u2019m not going to let you conduct the line up for the Police Department the way you want it done.\nMR. ROSENZWEIG: No, sir. I \u2014\nTHE COURT: We\u2019re not going to have one, Jeff. Now, you\u2019re getting close to being in contempt. Now, proceed or get out of it, or let me relieve you. If you don\u2019t want to go to trial with this case, fine. I\u2019ll relieve you and appoint somebody else. If you want to proceed, go on. You\u2019re not going to run the Police Department\u2019s procedure for having line ups.\nMR. ROSENZWEIG: I\u2019m not asking to run the Police Department \u2014\nTHE COURT: Don\u2019t argue with me, Jeff. Proceed. Would you rather be relieved?\nMR. ROSENZWEIG: No, sir.\nMr. Rosenzweig made his proffer and testimony resumed. When the witness concluded, the following occurred:\nTHE COURT: Call your next witness.\nMR. ROSENZWEIG: Judge, if you will give me permission, please to address the Court for a minute.\nTHE COURT: Why?\nMR. ROSENZWEIG: Judge, I\u2019ll explain it to you.\nTHE COURT: I\u2019d rather you just follow procedure and call witnesses, Jeff. (T. 52)\nMR. ROSENZWEIG: Judge \u2014 Judge, if you please would let me address something to the Court. I\u2019m not meaning any disrespect to the Court or anything of that nature with regard to it. I am baffled by what I understand your rulings to be a minute ago and I just want to make sure I understand correctly what you\u2019re saying.\nI understood you to say, when I was asking him some questions, something to the effect of, \u201cYou want a line up? We\u2019ll have a line up.\u201d We are not telling the Police Department what to do. We\u2019d love to have a live line up.\nIf in fact we are going to have a line up, I would drop, cease, desist, forget about this motion dealing with the photo spread and have a live line up.\nTHE COURT: I\u2019m not going to bargain with you, Jeff.\nMR. ROSENZWEIG: I\u2019m not trying to bargain. I\u2019m\nTHE COURT: If you and the Prosecutor want to get together and have a line up, you may do so. But, now, we\u2019re going to proceed with this hearing today, Jeff.\nMR. ROSENZWEIG: Okay.\nTHE COURT: And we\u2019re going to get through with your motion today.\nMR. ROSENZWEIG: Okay.\nTHE COURT: Call your next witness.\nMR. ROSENZWEIG: Okay. May I talk with the Prosecutor a second?\nTHE COURT: You may call your next witness. (T. 53)\nMR. DOUGLASS: No. Go ahead and call your next witness.\nMR. ROSENZWEIG: Judge, that\u2019s \u2014\nTHE COURT: Call your witness, Jeff.\nMR. ROSENZWEIG: Judge, if I may \u2014\nTHE COURT: No. I\u2019m going to hold you in contempt of court. I\u2019m not going to tell you any more. Call your next witness.\nMR. ROSENZWEIG: Let me talk to the Defendant for a second. Okay? May I?\n(Thereupon, Counsel for the Defense conferred privately with the Defendant; then the following proceedings occurred:)\nMR. ROSENZWEIG: We have no further testimony, your Honor.\nTHE COURT: You\u2019re not going to call the victim?\nMR. ROSENZWEIG: No, sir. And may I state the reason why in the record?\nTHE COURT: You may because I\u2019ve got a few things I want to say, too. So, I want you to get your say first.\nMR. ROSENZWEIG: Okay. Judge, our position is \u2014 As I say, if I understand what you were offering \u2014\nTHE COURT: I didn\u2019t make you an offer. I don\u2019t bargain with defense attorneys. (T. 54)\nMR. ROSENZWEIG: I wasn\u2019t \u2014 Offer. Let me use some other verb then. What I understand the Court to say was that, words to the effect that, \u201cIf you want a line up, we\u2019ll have a line up.\u201d And that\u2019s fine with us. That\u2019s \u2014 That was great. We\u2019ll do it according to Police Department procedures. I wasn\u2019t trying to \u2014\nAnd my position with regard to not calling any further witnesses is if we were going to have a live line up, under those circumstances I did not want and do not and did not want to taint that by having Ms. Rhodes, the viewer of the line up, see Mr. Neal under these circumstances, being the only black male in this room, being clad in an orange jumpsuit, when it\u2019s obvious the circumstances under which this happened. That was my reason.\nI did not intend \u2014 and I think that the record, when the Court looks at it \u2014 would so reflect that I did not \u2014 was not trying to dictate anything to the Court, I was trying to understand the Court\u2019s ruling with regard to it.\nWe would love to have a live line up. That would be wonderful. It would be perfect. And Mr. Neal feels and I feel that he would be vindicated by it.\nNow, with regard to the Court\u2019s attitude, apparent attitude toward me, nothing I said was intended in any disrespect to the Court. I believe my tone of voice was not disrespectful. (T. 55) I was in the process and have been in the process of trying to, number one, make an appropriate appellate record and, number two, trying \u2014 well, appropriate trial and appellate record with regard to it.\nNumber two, I was trying to understand the Court\u2019s ruling. And I think the record would reflect clearly that the Court offered to have a line up and then the Court said, \u201cNo, there won\u2019t be a line up.\u201d And then at another juncture the Court said, \u201cWell, if you get with the Prosecutor, you can have a line up.\u201d And then I asked for a minute to talk with the Prosecutor.\nI will make myself available at a line up if we could have one. We can have one any time before trial. It doesn\u2019t matter.\nThat\u2019s the situation. And, if the Court has any question about it, I would suggest that the Court have the court reporter type up the transcript of these proceedings and examine it or listen to the tape of it.\nTHE COURT: Have you got anything else you want to say?\nMR. ROSENZWEIG: No, sir.\nTHE COURT: Mr. Prosecutor?\nMR. DOUGLASS: I don\u2019t have anything else to say. I just need a ruling on the motion.\nTHE COURT: The Motion will be denied. The record should show that Mr. Rosenzweig filed this motion. He knows how to get an independent line up if he wants one. He didn\u2019t want one. He wants a continuance. (T. 56) The record should also show that he told the Court prior to coming in here that he had mixed emotions about this because he didn\u2019t want to expose his client to the victim before trial but he felt he had to do it.\nThis was an exercise in futility. It was a searching, fishing expedition. It was not made in good faith. The offer to bargain with the Court was not made in good faith. It is the chicanery to which Mr. Rosenzweig is well noted throughout the Bar. It is not intellectually honest. It does not serve the system well. Does not serve his client well. And the Court does not bargain with defense lawyers, as Mr. Rosenzweig frequently tries to put the Court in a position of doing.\nThe motion to suppress the in court identification will be denied, failure of proof on part of the Defendant.\nI don\u2019t care whether you have a line up or not, Jeff. It\u2019s not my business. You know how to do that. You\u2019re smart enough to do it. But you\u2019d rather have the record than to have something that you can\u2019t live with.\nThe Court finds you in contempt of court and fines you Five Hundred Dollars.\nMR. ROSENZWEIG: May I \u2014 I\u2019d like to appeal that. I will file a Notice of Appeal. Now, your Honor, may I respond on the record \u2014\nTHE COURT: No. (T. 57)\nMR. ROSENZWEIG: So that we \u2014\nTHE COURT: No. Because I asked you if you had anything else to say, Jeff, and you said, \u201cNo.\u201d This record is closed to you.\nMR. ROSENZWEIG: Judge \u2014\nTHE COURT: This record is closed. Now, I\u2019ll make it a Thousand Dollars if you want to pursue it. You\u2019ve got that record to appeal from. There will be no response by you. Fine of Five Hundred Dollars. All right. Thank you.\nMR. ROSENZWEIG: Judge, uh \u2014\nTHE COURT: We\u2019re in recess, Jeff. I don\u2019t want to talk with you. I\u2019m out of sorts with you right now. It would not be a good idea.\nMR. ROSENZWEIG: Judge, I \u2014\nTHE COURT: I don\u2019t want to talk to you, Jeff.\nMR. ROSENZWEIG: I need \u2014 I need to know when I can talk with you with someone else present, if you can tell me that.\nTHE COURT: My term ends in 1990. See me some time right after that. (T. 58)\nEvidently the trial court was annoyed because counsel stated that if he could have a line-up he would withdraw the motion then being heard. Why that would be an irritant is not apparent. It is apparent, both from the stenographic record and from a tape recording of the hearing that Mr. Rosenzweig\u2019s behavior did not approach contemptuous conduct in either his remarks or his tone. He was plainly confused by the court\u2019s comments, which we, too, find unaccountable. But we find nothing to justify the stinging rebuke administered by the trial judge. Indeed, we have carefully reviewed both record and recording and are thoroughly satisfied that counsel\u2019s demeanor to the trial court was at all times respectful. If the trial court had reasons for its strong reproach of counsel at the close of the hearing, they are not to any degree evidenced in the record.\nA few days after the hearing Mr. Rosenzweig filed a motion asking Judge Lofton to recuse from the case of State v. Michael Neal. When the motion was presented, the following occurred:\nTHE COURT: Bob, do you have anything to say?\nMR. ROBERT W. LASTER, ATTORNEY FOR A CO-DEFENDANT: No, sir.\nTHE COURT: Mr. prosecutor?\nMR. PENCE: Nothing. (T. 61)\nTHE COURT: Mr. Rosenzweig, my feelings about you are well known. I make no secret about them. Is that going to be your position in everything in this \u2014 First Division?\nMR. ROSENZWEIG: Your Honor, I\u2019m not in a position to answer that at this time because I\u2019m still thinking about it. And I \u2014\nTHE COURT: I will make you a deal. I\u2019m not going to let you forum shop and you can accept other cases in this court.\n(Abstracter\u2019s Note: Appellant\u2019s recollection, which he feels is borne out by the tape is that the judge said \u201ccan\u2019t accept.\u201d Certainly, \u201ccan\u2019t\u201d fits the context of these proceedings and the judge\u2019s remarks.)\nI basically just don\u2019t like you. I don\u2019t think there\u2019s any question about that.\nIf you will give me your word that you will not accept any more cases in First Division as long as I\u2019m on the Bench, I will grant you a continuance or I will relieve you or I will recuse in this case. Otherwise, I can try this case just as fairly. And all you\u2019re entitled to is a record. If you can prove error, you can prove error. And that\u2019s what you want. You want error. You want record. If that\u2019s what you want, fine. Otherwise, I\u2019m going to deny your motion.\nBut, if you will make me a promise that you won\u2019t accept any more cases in this court as long as I\u2019m on the Bench, I\u2019ll grant your request. If you don\u2019t think you can get a fair trial, that shouldn\u2019t be very difficult for you. (T. 62)\nMr. Rosenzweig respectfully and properly declined to make a commitment of that sort. Nor can we sanction the proposal. It was wholly inappropriate for the trial court to condition his recusal in the case on a commitment by counsel that he would refrain from practicing in First Division, Pulaski Circuit Court, so long as Judge Lofton was on the bench. It goes without saying that any member of the bar of Arkansas in good standing should have no compunction in practicing before any member of the trial or appellate bench, irrespective of personal relationships. A judge who cannot lay aside attitudes toward an individual practitioner which might affect impartiality has a duty to recuse on his or her own motion.\nWe need not cite statutory and case law dealing with the procedural or substantive rules of contempt of court. There is no dispute as to the law. Our decision turns entirely on the lack of any factual basis for a determination of contempt. Having examined the proceedings in their entirety, we believe Mr. Rosenzweig is entitled to be fully absolved of any taint of impropriety toward the trial judge, and we so hold.\nREVERSED.",
        "type": "majority",
        "author": "Steele Hays, Justice."
      }
    ],
    "attorneys": [
      "Dodds, Kidd, Ryan and Moore, by: Richard N. Moore, Jr., for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Jeff ROSENZWEIG v. Floyd J. LOFTON, Circuit Judge, Pulaski County Court, First Division\n88-17\n751 S.W.2d 729\nSupreme Court of Arkansas\nOpinion delivered May 31, 1988\nDodds, Kidd, Ryan and Moore, by: Richard N. Moore, Jr., for appellant.\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0573-01",
  "first_page_order": 601,
  "last_page_order": 613
}