{ "id": 3139020, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARVIN ZIPORYN, Appellee", "name_abbreviation": "People v. Ziporyn", "decision_date": "1985-04-19", "docket_number": "No. 59864", "first_page": "419", "last_page": "429", "citations": [ { "type": "official", "cite": "106 Ill. 2d 419" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "67 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813107 ], "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0055-01" ] }, { "cite": "94 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106072 ], "year": 1977, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0167-01" ] }, { "cite": "121 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560767 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/1051-01" ] }, { "cite": "461 F.2d 345", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1329863 ], "pin_cites": [ { "page": "366-71" } ], "opinion_index": 1, "case_paths": [ "/f2d/461/0345-01" ] }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "weight": 3, "pin_cites": [ { "page": "422-23" }, { "page": "422" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "99 L. Ed. 11", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "pin_cites": [ { "page": "17-18" }, { "page": "15" } ], "opinion_index": 1 }, { "cite": "348 U.S. 11", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6930573 ], "weight": 4, "pin_cites": [ { "page": "17" }, { "page": "15" }, { "page": "13" }, { "page": "13" } ], "opinion_index": 1, "case_paths": [ "/us/348/0011-01" ] }, { "cite": "84 L. Ed. 2d 1", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 11298734 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/us/470/0001-01" ] }, { "cite": "121 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560767 ], "weight": 2, "pin_cites": [ { "page": "1056" }, { "page": "1060" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/121/1051-01" ] } ], "analysis": { "cardinality": 785, "char_count": 17982, "ocr_confidence": 0.726, "pagerank": { "raw": 1.0805970409648916e-07, "percentile": 0.5624198553660851 }, "sha256": "d64f0324788dbbc6e5c0c67463f0a48010b79a8df649c65e1d35feb93b69f38f", "simhash": "1:222b7cccf869c1f0", "word_count": 2875 }, "last_updated": "2023-07-14T21:35:30.136819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARVIN ZIPORYN, Appellee." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nIn a bench trial in the circuit court of Cook County, defendant, Marvin Ziporyn, was convicted of indirect criminal contempt. Defendant appealed, the appellate court reversed (121 Ill. App. 3d 1051), and we allowed the People\u2019s petition for leave to appeal (94 Ill. 2d R. 315(a)). The facts are adequately set forth in the opinion of the appellate court and will be restated only to the extent necessary to discuss the issues.\nDefendant, a psychiatrist, testified as an expert witness for the defense in a sentencing hearing in a capital case. He was subjected to cross-examination which the appellate court described as \u201cvigorous,\u201d \u201cextensive,\u201d and \u201crather demeaning.\u201d Upon leaving the witness stand, he approached the assistant State\u2019s Attorney who had cross-examined him and addressed to him a remark which the appellate court correctly describes as \u201ca vile epithet.\u201d The testimony varies as to whether defendant\u2019s remark was whispered or delivered in a louder tone of voice. There is no question, however, that the assistant State\u2019s Attorney repeated the remark in a louder than conversational tone and demanded that defendant be held in contempt of court.\nThe People filed a verified petition for contempt, and the judge presiding at the hearing during which the incident occurred transferred the cause for reassignment and trial before another judge. Defendant was found guilty of indirect criminal contempt and sentenced to one-year misdemeanor probation, five weekends of which were to be spent in the Cook County Department of Corrections.\nThe appellate court concluded that defendant, when whispering the obscene remark to the assistant State\u2019s Attorney, could not have foreseen that he would loudly repeat the remark and could not therefore have known that it would embarrass or obstruct the court in the administration of justice. It held that the comment made to the lawyer posed no imminent threat to the administration of justice and did not constitute contempt. It concluded that the People failed to prove the contemptuous act and the criminal intent required for criminal contempt, and reversed the judgment.\nThe People contend that it is \u201ccontumacious to address a form of obscene ritual fighting words to an officer of the court in the presence of jurors and within the hearing of spectators.\u201d They point out that two witnesses, one approximately four feet and the other approximately eight feet from the respondent, heard the insult. They argue that these words, spoken within the hearing of spectators, were clearly intended to impair the dignity and authority of the court.\nWe do not agree with the appellate court that the evidence does not show the intent necessary to sustain a finding of guilt of contempt of court. Defendant admitted that he made the statement, and although it is contended that it was said in a whisper, two witnesses testified that they heard him say it. Under these circumstances, it was possible that members of the jury might have overheard defendant\u2019s comments.\nDefendant is a psychiatrist with considerable experience in court appearances. The intent to commit contempt of court may be inferred from the actions of the contemnor. (People v. Siegel (1983), 94 Ill. 2d 167, 171; People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 61.) Although, as the appellate court said, it is true that defendant could not foresee that the assistant State\u2019s Attorney would repeat the epithet and demand that defendant be held in contempt, it was certainly foreseeable, under the circumstances, that these \u201cfighting words\u201d would prompt action which would disrupt the court proceedings. In our opinion the finding of contempt is supported by the evidence.\nDefendant contends that the circuit court erred in denying his oral motion for a change of venue. The reason for the requested change, as stated by counsel, was that \u201cobviously my client would be prejudiced in this court. It seems that the State\u2019s Attorneys are the ones who \u00e1re filing this and not the court ***.\u201d Simply stated, the argument appears to be that because the assistant State\u2019s Attorneys were the complainants rather than serving as counsel, the court was prejudiced. We find the contention to be without merit.\nDefendant contends that the court\u2019s prejudice was demonstrated by disparaging remarks concerning counsel and by its wrongfully accusing defendant of obstructing the proceedings. From our examination of the record we conclude that these contentions are without merit.\nAlthough the finding of contempt is affirmed, we conclude that on this record the imposition of a period of probation is unnecessary and excessive, and that a fine is adequate punishment for the offense. The testimony indicates that the conduct of the assistant State\u2019s Attorney was not beyond reproach, and his cross-examination of defendant appears to have been deliberately demeaning. That defendant\u2019s conduct was not flagrantly contemptuous is obvious because until the assistant State\u2019s Attorney repeated his comment, neither the court nor most of the people in the courtroom were aware that anything untoward had occurred. As indicated by the record, defendant has testified on many occasions without any prior unseemly occurrence. Under the circumstances we are persuaded that an appropriate sanction is the imposition of a fine in the amount of $250.\nFor the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court finding defendant guilty of contempt of court is affirmed. The cause is remanded to the circuit court of Cook County with directions to vacate the order of probation and fine defendant the sum of $250.\nAppellate court reversed; circuit court affirmed as modified.", "type": "majority", "author": "JUSTICE GOLDENHERSH" }, { "text": "JUSTICE SIMON,\ndissenting:\nIt is regrettable that this court\u2019s time and attention must be given to a matter of this nature. Our system of justice requires that judicial proceedings be conducted with the dignity and decorum that are conducive to a rational and dispassionate determination of the facts at issue. This is particularly important at a criminal trial when a defendant\u2019s life hangs in the balance; inappropriate behavior in a courtroom may affect the fairness of the proceedings and the validity of the verdict. Thus, it is incumbent upon all who participate in a judicial proceeding, judges, attorneys and witnesses alike, to ensure that an atmosphere appropriate to a court of law is maintained. United States v. Young (1985), 470 U.S._, 84 L. Ed. 2d 1, 105 S. Ct. 1038; Offutt v. United States (1954), 348 U.S. 11, 17, 99 L. Ed. 11, 17-18, 75 S. Ct. 11,15.\nUnfortunately, in the capital case in which the incident giving rise to this proceeding occurred, such an atmosphere was not maintained. Instead, tempers flared, civility was forgotten, and inflammatory speech was used. Too many aspects of the proceeding were more appropriate to a barroom than a courtroom. The observation in the majority opinion that the \u201ctestimony indicates that the conduct of the assistant State\u2019s Attorney was not beyond reproach\u201d (106 Ill. 2d at 422) is, in my opinion, a gross understatement. Perhaps the best demonstration of the validity of this view is the court\u2019s opinion in People v. Lyles (1985), 106 Ill. 2d 373, filed simultaneously herewith. In the courtroom as well as in the judge\u2019s chambers, the assistant State\u2019s Attorneys engaged in overzealous, intemperate and unprofessional conduct that set the tone of the trial before the incident occurred that is the basis of the contempt charge, and that incident cannot be fairly considered apart from the conduct of the prosecutors. Cf Offutt v. United States (1954), 348 U.S. 11, 13, 99 L. Ed. 11, 15, 75 S. Ct. 11, 13 (\u201cAppellant\u2019s conduct cannot fairly be considered apart from that of the trial judge\u201d).\nFor example, during an in camera sidebar in the course of the sentencing hearing, one of the prosecutors said to the court:\n\u201cI can\u2019t believe [the defense attorney] makes an objection on hearsay, a God damn hearsay objection in a God damn sentencing hearing and judge, you entertain it ***.\u201d\nThe defense counsel complained on the record that on several occasions, in the corridors and judge\u2019s chambers, the prosecutors had addressed a variety of insulting and vulgar epithets to him. During Dr. Ziporyn\u2019s cross-examination, the trial judge found it necessary to admonish one of the prosecutors for attacking the manner in which he ruled on objections.\nThe charged atmosphere created by such improper conduct was exacerbated during the State\u2019s cross-examination and re-cross-examination of Dr. Ziporyn, which the majority opinion acknowledges \"appears to have been deliberately demeaning.\u201d During the cross-examination, the assistant State\u2019s Attorney repeatedly interrupted the witness, the defense attorney, and the court in a rude and strident manner and criticized the court\u2019s conduct of the proceedings. He asked a series of questions intended to ridicule Dr. Ziporyn\u2019s testimony, refused to allow him to respond to many questions, repeatedly withdrew questions after the court overruled defense objections to them, and addressed personal and insulting remarks to the witness.\nWhen Dr. Ziporyn was excused from the stand, the court held a sidebar while the jury remained in the courtroom. The accounts of the assistant State\u2019s Attorney and Dr. Ziporyn as to what happened while the sidebar was taking place differ in only one respect. According to Dr. Ziporyn, he approached the prosecutor at the counsel table to ask for a copy of a newspaper article on which he had been questioned during cross-examination, and the prosecutor\u2019s response was, \u201cScrew you, Jew.\u201d At his contempt hearing, Dr. Ziporyn explained that, because he had lost 67 relatives in the Holocaust, he found this slur especially offensive, and in reply whispered the remark that is the basis for the contempt charge against him.\nThe testimony of the assistant State\u2019s Attorney was that Dr. Ziporyn approached the counsel table, said \u201csomething about a newspaper,\u201d and when the assistant State\u2019s Attorney made a gesture with his hand to indicate to Dr. Ziporyn that he wished to be left alone, Dr. Ziporyn directed his remark to him, speaking in a tone \u201cloud enough so that only I, not the jurors who were near, could hear it.\u201d He testified that Dr. Ziporyn whispered his remark, but denied he said anything to Dr. Ziporyn. The judge who presided at the contempt proceeding found the assistant State\u2019s Attorney\u2019s account credible and Dr. Ziporyn\u2019s version not credible.\nI am disturbed by the cavalier dismissal of Dr. Ziporyn\u2019s testimony as a fabrication, especially in light of the assistant State\u2019s Attorney\u2019s prior behavior and apparent penchant for using abusive language. The judge\u2019s explanation for disbelieving Dr. Ziporyn\u2019s testimony regarding the ethnic slur and his reason for responding as he did was the judge\u2019s self-professed failure \u201cto see any relationship between that alleged remark and the Holocaust or Auschwitz.\u201d According to the court, Dr. Ziporyn\u2019s testimony connecting his remark and the Holocaust \u201cgo[es] to the heart of his credibility.\u201d\nA trial judge who hears and sees the witnesses is ordinarily in a better position to determine their credibility than a reviewing court judge. In this case, however, the trial judge\u2019s failure to understand the inciting effect that an anti-Semitic remark of the sort that Dr. Ziporyn testified was directed at him can have on one whose family was decimated in the Holocaust resulted in a misguided and insupportable conclusion regarding the witness\u2019 credibility. Had the trial judge reached a different conclusion regarding Dr. Ziporyn\u2019s credibility, his offensive remark could have been dismissed as conduct intended only to express disdain for the assistant State\u2019s Attorney and not intended to be contemptuous of the court or to disturb the courtroom proceedings. Nevertheless, in concluding that Dr. Ziporyn was erroneously held in contempt, I disregard Dr. Ziporyn\u2019s version of the facts and rely only upon the assistant State\u2019s Attorney\u2019s account.\nNeither the judge nor the attorneys engaged in the sidebar heard Dr. Ziporyn\u2019s remark. No evidence was adduced that any member of the jury heard it. The majority opinion acknowledges that the evidence at the contempt hearing established that only two people, another prosecutor and a relative of the murder victim, had heard the remark until the prosecutor leapt to his feet and repeated it in a \u201cheated\u201d tone at a volume that ensured that everyone in the courtroom heard it.\nThe majority\u2019s statement that it was possible that members of the jury might have overheard Dr. Ziporyn is speculation. Clearly this speculation, unsupported by evidence, does not constitute the proof beyond a reasonable doubt required for a conviction of criminal contempt. Moreover, the majority\u2019s speculation is contravened by the assistant State\u2019s Attorney\u2019s testimony as well as by the majority\u2019s own observation that, until the prosecutor repeated Dr. Ziporyn\u2019s remark, \u201cneither the court nor most of the people in the courtroom were aware that anything untoward had occurred\u201d (106 Ill. 2d at 422-23).\nThe law does not support a finding of indirect criminal contempt even on the facts related by the assistant State\u2019s Attorney. As the appellate court noted in its careful analysis of the elements required to sustain a conviction for indirect criminal contempt, the State must prove beyond a reasonable doubt both a contemptuous act and an intent to \u201c \u2018 \u201cembarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.\u201d \u2019 \u201d 121 Ill. App. 3d 1051,1056.\nI agree with the appellate court that the evidence does not support a finding that Dr. Ziporyn intended to disrupt the proceeding. Had that been his intention, he would not have whispered the remark to the prosecutor in a tone that was inaudible to the judge and the jury and all but two other persons in the courtroom. Moreover, he could hardly have foreseen that the assistant State\u2019s Attorney would disrupt the courtroom by loudly repeating the remark, since this is not the response one would expect from a responsible officer of the court. Indeed, one must question the assistant State\u2019s Attorney\u2019s motive in publicly repeating the remark. His behavior may have been intended to ensure that the jury heard the remark Dr. Ziporyn whispered in order to discredit his testimony. Whatever his motive, however, the assistant State\u2019s Attorney\u2019s conduct invited a motion for mistrial in a criminal case in which the defendant\u2019s life was at stake. As an officer of the court, he had the obligation to avoid such a risk. Since such unorthodox conduct could not be predicted, Dr. Ziporyn could hardly have intended his whispered remark to \u201cembarrass, hinder or obstruct [the] court.\u201d\nThe majority suggests that because the defendant \u201cis a psychiatrist with considerable experience in court appearances\u201d his intent to commit contempt should be inferred from his remark. However, an experienced expert witness would have knowledge of the demeanor expected of attorneys in a courtroom setting, and this would, on the contrary, give him reason to anticipate restraint by an attorney rather than explosive and disruptive behavior in the presence of a jury.\nThe majority continues: \u201cAlthough, as the appellate court said, it is true that defendant could not foresee that the assistant State\u2019s Attorney would repeat the epithet and demand that defendant be held in contempt, it was certainly foreseeable, under the circumstances, that these \u2018fighting words\u2019 would prompt action which would disrupt the court proceedings.\u201d (106 Ill. 2d at 422.) I have difficulty following this reasoning. In view of the majority\u2019s statement that Dr. Ziporyn could not have foreseen that his offensive remark would be repeated in open court in the presence of the jury and the judge, how can he be held responsible for the disruption that occurred? The majority opinion validates the conviction of contempt because other \u201caction\u201d could foreseeably have followed Dr. Ziporyn\u2019s remark. I do not understand how the defendant can be held in contempt for other \u201caction\u201d which the majority fails to identify, yet characterizes as \u201cforeseeable,\u201d and which, in any event, never occurred.\nMoreover, Dr. Ziporyn did not perform the act that did obstruct the proceedings, which is required for a finding of criminal contempt. Had the assistant State\u2019s Attorney not blurted out the vulgar invective, no disruption would have occurred and there would have been no occasion for an order to show cause. It was clearly his conduct and not Dr. Ziporyn\u2019s that in fact disrupted the courtroom. The appellate court was therefore correct in holding that the State failed to prove beyond a reasonable doubt that defendant either displayed the intent or committed the obstruction required to establish criminal contempt. 121 Ill. App. 3d 1051, 1060; see also United States v. Seale (7th Cir. 1972), 461 F.2d 345, 366-71.\nThe majority has found mitigating circumstances sufficient to warrant imposing the modest sanction of a $250 fine instead of the probation with periodic confinement imposed by the trial court. My opinion is, however, that the circumstances which induce the majority to reduce the sanction indicate that Dr. Ziporyn\u2019s conduct, reprehensible as it was, did not constitute criminal contempt.", "type": "dissent", "author": "JUSTICE SIMON," } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Kevin Sweeney, Assistant State\u2019s Attorneys, of counsel), for the People.", "Lawrence Jay Weiner and Frederic Bryan Lesser, of Weiner, Neuman & Spak, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 59864.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARVIN ZIPORYN, Appellee.\nOpinion filed April 19, 1985.\nRehearing denied May 31, 1985.\nNeil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Kevin Sweeney, Assistant State\u2019s Attorneys, of counsel), for the People.\nLawrence Jay Weiner and Frederic Bryan Lesser, of Weiner, Neuman & Spak, of Chicago, for appellee." }, "file_name": "0419-01", "first_page_order": 431, "last_page_order": 441 }