[This transcript provided to me via US Mail and typed by myself for use on the this Timeline]
DISTRICT COURT, COUNTY OF JEFFERSON, STATE OF COLORADO
Matter came on for contempt hearing on Thursday, October 25, 2001 before the HONORABLE FRANK PLAUT, District Court Judge.
(The following proceedings were held in open court with the defendant on bond represented by counsel.)
THE COURT; This is Miller, 99CR2023.
MR. TINGLE: Good morning, Your Honor. Charles Tingle on behalf of the People.
MR. TRUMAN: Judge, my name is Craig Truman. I represent the Respondent witness, Fleet White, who is present at my side on bond. May I come to the bench, Your Honor?
THE COURT: Yes.
MR. TRUMAN: I'm tendering up a copy of a plea of guilty to indirect contempt signed by Mr. White and myself, and of course a copy of that has been given to Mr. Tingle. Your honor, at this point, we have yet to be arraigned on this indirect contempt under Rule 107. We are prepared for arraignment.
THE COURT: All right. Let me understand one thing because while diligently reviewing this file yesterday, I noticed there was another witness, Steve Thomas, I believe, where a similar issue had arisen, but we're not addressing that.
MR. TRUMAN: We are not, Your Honor. After and extended hearing in front of Judge Tidball, that petition for indirect contempt was dismissed because of some service difficulties -
THE COURT: I read all about the service. In fact, that is most of what the testimony related to. Okay. So, Mr. Truman, as far as arraignment, how do you propose to proceed?
MR. TRUMAN: Your honor, this is a rather unusual circumstance. I've only been in this circumstance once before. So what I have done is I've prepared a written pleas of guilty concerning Mr. White's rights under Rule 107. He has been advised of those and initialed those rights. I have also indicated the potential penalty under Rule 107 as he was previously advised that he is subject to a sentence up to 180 days in the Jefferson County Jail. As Your Honor knows, if he is advised it is a possible penalty of over 180 days, he has a right to a jury trial. Since Judge Tidball advised him to the contrary, there is no jury trial right, he only has a right to the Court. His plea must be voluntary -
THE COURT: There was an advisement, but I think that was to Mr. Thomas on the 180 days; am I right? I didn't seem to recall seeing that in the transcript, but that didn't relate to Mr. White from what you are telling me.
MR. TRUMAN: My understanding, Your Honor, is there was an advisement, this was 180 days to both witnesses. I then have provided a certificate of the elements of Rule 107. Mr. White has been advised and has signed that he understands the certificate of elements. I believe this is an appropriate way to proceed and have provided a statement to that effect, and then we ask that the Court look at our proposed findings. So at this point, I waive arraignment. Mr. White has been previously advised under Rule 107. We're prepared for arraignment and as to the count, Mr. White pleads guilty through counsel.
THE COURT: So you are waiving arraignment and formal reading and further advisement as I understand it.
MR. TRUMAN: He has been advised and the citation was read to him by counsel, so he has already received those. We are waiving any further -
THE COURT: All right. Mr. Tingle, what is your reaction to the way that Mr. Truman proposes to proceed?
MR. TINGLE: Your honor, I think he is - it is entirely appropriate to proceed in the suggested fashion by Mr. Truman. He did tender a copy of the plea of guilty to indirect contempt signed by Mr. White to me this morning and I've been reviewing that. On the last page, there is, as Mr. Truman said, a suggested copy of a findings and order with a signature line for the Court. At an appropriate time, I would have one additional suggestion to those findings and order.
THE COURT: All right. Let me take this occasion then to review these. And, Mr. Truman, if you and your client want to be seated for a minute, that's fine.
MR. TRUMAN: Thank you, Your Honor.
THE COURT: All right. Mr. Tingle, you said you had an additional finding that you wanted to ask that the Court consider making?
MR. TINGLE: Yes, Judge. With respect to accepting the guilty plea to remedial contempt, I don't know that finding is important. It is more pertinent to the issue of punishment. Rule 107 and the case law provides that if the Court is going to impose a fine or imprisonment or both, it requires that the Court expressly find that the person's conduct was misconduct and offensive to the authority and dignity of the Court. So perhaps it would be premature and inappropriate to enter that finding as a part of the plea and more appropriate when we get to the issue of punishment and court action.
THE COURT: All right. Mr. Truman, what I am going to do is inquire of Mr. White orally the same way I would with any other client who had signed a typical Rule 11 advisement. So, Mr. White, if you'll step up to the podium again, please.
MR. TRUMAN: He has been advised the Court would proceed in that fashion.
THE COURT: Well, what if I hadn't? I guess everybody would have been terribly disappointed.
MR. TRUMAN: He would have been better prepared than not, Your Honor.
THE COURT: All right. Mr. White, if as we go through this process you have any questions or if there is anything you don't understand, will you please let me know?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you read, write and understand the English language?
THE DEFENDANT: Yes.
THE COURT: Are you under the influence of any physical or emotional condition or any medicine or drug or alcohol that would create a problem for you in understanding what is going on here this morning?
THE DEFENDANT: No.
THE COURT: Were you under the influence of any such factor at the time you entered this - signed this document entering a plea of guilty to indirect contempt?
THE DEFENDANT: No.
MR. TRUMAN: Your honor, while it was signed today, it was reviewed yesterday and over the last several days.
THE COURT: Okay. I think my question covers all of those time periods. You have certain rights Mr. White, all of which you would be giving up if you were to plead as proposed. Those rights include the right to a speedy and public jury trial and the right to be represented by a lawyer at that trial. If you can't afford a lawyer, one would be appointed for you. At trial, you would have the right to face the witnesses against you and have them cross-examined by your lawyer; the right to call witnesses on your own behalf and subpoena them to court if necessary; the right to raise any defenses you might have including an alibi defense; and the right to decide whether or not you would testify. You would be presumed innocent throughout the trial and before you could be found guilty of any charge, the jury or in this case, the Court would have to find that each element of that charge had been proved beyond a reasonable doubt. If you were convicted of any charge, you would have the right to appeal that conviction. Do you understand those rights?
THE DEFENDANT: Yes, I do.
THE COURT: Has anybody put any pressure on you or made any promises to you to get you to plead in this case?
THE DEFENDANT: No.
THE COURT: Have you been satisfied with Mr. Truman's services?
THE DEFENDANT: Absolutely.
THE COURT: And now being so advised, you do wish to plead guilty to the charge of indirect contempt as stated in the written document; is that correct?
THE DEFENDANT: That's correct.
THE COURT: The court finds the plea has been knowingly, intelligently and voluntarily made. Defendant understands his rights, the nature of the charges and the possible penalties, a factual basis has been stipulated; and defendant has been represented by effective and competent counsel. So finding, the Court accepts the plea of guilty to the charge of indirect contempt. The Court will also sign the document entitled "Findings and Order" finding that everything recited therein is indeed a finding made by the Court. Have counsel discussed how they want to proceed as far as sentencing? And I guess I am assuming that is to be handled by this Court rather than Judge Tidball, but I'm certainly happy to have it go either way.
MR. TINGLE: Judge, my understanding from our last hearing was that when a case was moved from Division 3 to this division, that this Court would handle all aspects of the hearing to include sentencing.
THE COURT: How do counsel propose to proceed in that regard?
MR. TRUMAN: Your Honor, Rule 107 indicated that Mr. White has an opportunity to make a statement in mitigation for the Court to consider prior to the imposition of sentence. We have a document which I have entitled "Defendant's Exhibit A," and of course I have given a copy of that to Mr. Tingle to review. What I would suggest to the Court is we would like to have that admitted in evidence as the statement in mitigation, if the Court would like to take a moment, it is six and a half pages or so, to review that, then we would ask to proceed to immediate sentencing. Now, some of the information in Defendant's Exhibit A involves issues that are confidential by law, and we would ask that the Court, after the Court considers it, place these documents under seal.
THE COURT: All right. Mr. Tingle.
MR. TINGLE: Your honor, with respect to that procedure, I do not have an objection. At the same time, I would tender People's Exhibit 1, which is a letter drafted by Gary Lozow, who I'm sure the Court knows from a review of the file was the attorney that had requested that Mr. White appear both at the motions hearing as well as the trial and it was his subpoena that was ignored. So I would ask that the Court take a brief moment to review that as well.
THE COURT: Have each of you seen the document proposed to be submitted by the other?
MR. TINGLE: Yes, sir.
MR. TRUMAN: Yes, sir.
THE COURT: I'll take some time and look at them both and then proceed.
MR. TRUMAN: May I approach?
THE COURT: And I'll also hear from Mr. White further if he wishes and I'll hear further comments from counsel, but I'll start by looking over the documents.
MR. TRUMAN: Thank you, Your Honor. I'm handing the Court Defendant's Exhibit A and People's Exhibit 1, and ask they be received as evidence.
(People's Exhibit 1 received into evidence.)
(Defendant's Exhibit A received into evidence.)
MR. TRUMAN: Thank you, Your Honor.
THE COURT: All right. I have read thoroughly Exhibit 1, which is a letter from attorney Gary Lozow to Mr. Tingle dated October 23 of 2001 and Exhibit A, which is a six and a half page statement signed by Mr. White yesterday. So Mr. Truman, there are a few things that I would want to know about Mr. White, but it may be that you will be telling me those things anyway. So why don't you begin. If you have any questions, I'll ask the matter I've heard from counsel and from Mr. White.
MR. TRUMAN: Well, Your Honor, this case is a living example of just when you think you've seen everything, there is something new and different in the law. This particular case, and the case in Boulder in which Mr. White found himself embroiled is unusual, to say the least. And circumstances surrounding that case have been the most unusual I have ever heard, seen or read about. I need to tell the Court straight up, that there is no legal justification or excuse for Mr. White's failure to appear on either occasion. The first one he was admonished and told to follow Court orders. The second one he determined not to appear for reasons stated in Defendant's Exhibit A and was in direct contempt of court, there is no question about that. The reasons I think are in mitigation and the Court has a background in the mitigations set forth in the document. But further than that, Your Honor, this was an unusual case, The Miller case in and of itself. It was a charge of criminal libel and extortion libel in which one of the witnesses, at least one of the defendants was able to post a $100,000 donation and have the criminal case against him dismissed. I have not seen that happen very often in my time here. The second thing was once that had been accomplished, the second case went to trial. Mr. White was subpoenaed to be a defense witness and discussions with Mr. Hall, the prosecutor in that case and from my own review of the file, I believe that had Mr. White hired the appropriate counsel and made a motion to quash the subpoena rather than sending a letter to the Court, that a hearing would have ensued and I believe that there is a very close case as to whether or not the subpoena would have been quashed, not for any service reasons, we acknowledge service was had, but rather because Mr. White's relevant testimony, if any, was de minimis. Irrespective of that, Your Honor, we need to appear in court when subpoenaed. And one can only tell from Mr. Lozow's letter and Mr. Leidner's previous statements that they took offense at Mr. White's failure to appear on their subpoena. In Mr. White's behalf, he is a fellow that has never been in trouble with the law whatsoever. He had come with his family to Boulder not so long ago and through no fault of his own became a witness in a case that seemingly has no end and no boundaries. I have stayed out of that case, Your Honor, but just so the Court knows how unusual it is, not so long ago, I received a call from Japanese television. They wanted me to come down and stand on the Boulder mall and say things about this particular case. I don't know anything about this case. They said that would be fine, all they needed was a talking head and they would give me $1,000 so they could translate what little I had to say into Japanese. I didn't accept that offer, but later I am told -
THE COURT: You were waiting for a better offer, Mr. Truman?
MR. TRUMAN: Your honor, it is not the money so much, but I was interested in how I would sound in Japanese. Irrespective of that, Your Honor, I am told that another lawyer took them up on that offer and in fact was down on the Pearl Street Mall speaking about that. And I've handled some cases that have had some publicity over the past, but nothing close to this. Mr. White believes that there are circumstances surrounding that case that fed into this case. In my business, it is not unusual for me to see paranoid folks. The Court sees them, Mr. Tingle does as well. Often times that paranoia is without basis. The more I have investigated this particular circumstance, the more I believe that Mr. and Mrs. White have a right to be paranoid because of the criminal justice system as it applies to the Boulder case has taken a course never before seen in Colorado law, it is my belief, and never a course seen by me. Mr. White made a choice, he made a bad choice, and that choice was not to come to court rather than hire a lawyer and fight it. Mr. White understands that was a bad choice and now understands even though this is not remedial contempt, that he must follow Court orders and that he must either move to fight this subpoena or appear as requested. Now, since this matter has occurred, he has been the subject of several federal court subpoenas to come give depositions in the second wave of the Ramsey case, which involves four or five civil suits that are pending against different people involved. We have met those subpoenas and we will respond to time in the appropriate fashion. And so I believe that shows the Court that Mr. White has learned his lesson. Mr. White, in my opinion, never wished to impugn the dignity of the Court, never wished to show contempt for the Court. He violated the Court order and we agree that is so. What to do with Mr. White? It is a hard circumstance. Mr. Lozow believes that jail time is appropriate. Mr. Leidner, I am not sure the Court has heard his statement, but he believed the same, he said that in open court in front of Judge Tidball. Mr. Tingle and I aren't so sure. It is an unusual, difficult circumstance. I believe that some sanction needs to be imposed, but I am going to ask the Court not to impose jail time. Mr. White was arrested on this matter, but frankly, he bonded out very quickly, so by stretching it, he may have one day of jail time, but frankly it is just a few hours. Your honor, can I answer any questions the Court has?
THE COURT: Well, again, after I hear from Mr. White if he wants to speak, I may have some questions, but it may be that all my questions are answered by then. So Mr. Tingle.
MR. TINGLE: Judge, I was not involved in the underlying prosecution that led to the subpoenas of Mr. White in this case. I did get involved relatively recently just insofar as the contempt matter against Mr. White. But I've had an opportunity to review portions of the case file, some of the transcripts, those particularly pertaining to Mr. White's failure to appear, and the proceedings since then, as well as I did attend a court appearance and had some discussion with both Mr. Truman and Judge Tidball about this case. But simply, as I think the Court knows, to rehash and I think the Court has had an opportunity to review the file, but just to clarify, my understanding is that initially Mr. White was subpoenaed by or at the behest of Mr. Gary Lozow who represented Thomas Miller for a motions hearing on or about May 3rd of this year. Mr. White failed to appear. And my understanding is that the warrant was stayed. And within probably less than 24 hours, if not the same day, Mr. White was persuaded to come into court and he did so. Mr. White, as I understand it, apologized to Judge Tidball at that time for failing to appear, but I also understand that Mr. White was admonished by Judge Tidball and instructed in no uncertain terms that that type of conduct would not be tolerated. My understanding is that Mr. Lozow continued in his pursuit to obtain Mr. White's appearance in the matter against Mr. Miller and subpoenaed him for trial in mid-June of this year and Mr. White failed to honor that subpoena. At some point several days later, Mr. White apparently came back to court and at that time was arrested and taken to jail. And I believe he posted bond at that time. Now by June 25th of this year or on that date, Mr. White again appeared and I believe pro se in front of Judge Tidball who advised him. And during that hearing, Mr. White indicated that he realized he was under the jurisdiction of the Court and had to follow Court orders. And he stated at that point, I think, some of what the Court has before it in Defendant's Exhibit A, that he state he didn't think he had relevant evidence to give and that he had written a letter to the Court asking he be excused from his subpoena. And he acknowledged at that time, as he does today, he did not go about it properly. He told Judge Tidball at that time that he made the decision based upon what he thought was in the best interest of his family and the system. And he indicated if he did get another subpoena, he would comply or contest it in an appropriate manner and once again apologized to the Court. And based upon Mr. Truman's assertion today that Mr. White has in fact been subpoenaed, it is certainly good to know that he is honoring those subpoenas or proceeding in a fashion consistent with the law. There was an issue in front of Judge Tidball as I understand it in some discussion about what the appropriate penalty was and the appropriate fashion of proceeding wherein Mr. Hall indicated to the Court that a couple of things in his view needed to be considered. Now, I don't know if the Court had a chance to read those or not, but one was what was the result of Mr. White's failure to appear? And I suppose from the defense standpoint, just in terms of the impact on Mr. Miller's trial, the impact was de minimis in that a not guilty verdict was reached. I don't know frankly how critical that issue is. Mr. Hall also indicated to Judge Tidball that in his view, Mr. White did not have information that would frankly be relevant as to the charges that were being tried to that Court. I have some question about that. I called Mr. Lozow who had subpoenaed Mr. White and asked him that question. And he didn't get into a lengthy explanation, but as I understood it, based upon the charges, Mr. Lozow's theory was that Mr. White, had he appeared on his subpoena, would have testified that very shortly after the discovery of JonBenet Ramsey, Mr. White had an opportunity to observe the ransom note that was the subject matter of the Miller trial. And apparently, Mr. White's spouse also had that opportunity and that that was important according to Mr. Lozow for his theory to show that the note entered public domain. Not being familiar with all of the facts of that case and instructions in that case and the defense, I essentially took Mr. Lozow's offer at face value. Mr. Lozow also tendered an offer of proof to the Court, albeit relatively limited, on May 3rd of 2001 that is contained in the transcript. And at that time, Mr. Lozow indicated, and I'll quote from page six of that transcript, Mr. White was outlined as being a participant of course in the first days of investigation, that he had access to the note. We have reason to believe that his wife had access to the note. We only subpoenaed Mr. White to minimize the disruption. I have to tell you as an officer of the court Mr. White would not talk to me through counsel or individually after leaving the message. So I have to limit my offer of proof to that. Mr. Lozow had indicated to me that he made efforts, I believe through his investigator, to speak to Mr. White over the phone or even perhaps to visit Mr. White prior to the subpoenas, but his attempts to do that were unsuccessful. Mr. Lozow indicated that certainly depending upon what Mr. White would have told him might have dictated Mr. Lozow either withdrawing his subpoena or not issuing it in the first instance, but be that as it may, not to oversimplify, this is a serious and significant matter. Mr. White was subpoenaed on two occasions by defense counsel. And Mr. White on two occasions acted inappropriately in our view and did not honor those subpoenas. I don't know that there is any way around that and I can't agree more with Mr. Truman in his statement to the Court that there is no legal justification, no legal excuse or justification for failing to appear on those subpoenas. In terms of the appropriate remedy, Mr. Hall had suggested when this case was still in front of Judge Tidball, and Mr. Hall was the sole prosecutor as I understand it on the Miller case, that he believed that a period of community service or some hours of community service would be appropriate based upon his view of the entire matter. When I first got involved in this case, Mr. Hall explained that position to me and indicated that is what he thought was appropriate. We all have different views and perspectives in the world, and granted, I haven't been involved in this case very long. I have a somewhat different view than Mr. Hall and I don't know that community service is sufficient penalty or punishment in this matter. Certainly the result of the conduct for Mr. Miller is perhaps by one's view not all that significant since he was acquitted of the charges, but certainly this conduct must be viewed as an affront to the Court and to Judge Tidball, particularly after her dealings with Mr. White, her discussions with Mr. White, and particularly in light of Mr. White's statements to her that he understood what the subpoena was and that he would act in an appropriate fashion when served properly with subpoenas. The Court has the option to, under its authority, I think, enter a sentence that would include community service hours, and by now means would I suggest that is inappropriate, but the Court also has the power and authority under Rule 107 to do more, both fine or imprisonment, either separate or together. And we ask the Court to impose what it believes is an appropriate penalty in this case. What I did indicate to Mr. Truman is that my disagreement with Mr. Hall was that if the Court is inclined to go the route of community service and/or impose a fine, certainly my view with respect to a fine is it should be very, very, very significant. And when I say that, I mean thousands of dollars. Mr. Lozow, who was obviously the attorney directly and immediately impacted by Mr. White's conduct, does ask this Court to impose a jail sentence. And I recall that in the last paragraph of his letter, he asked that Mr. White spend one day for every day Mr. Miller was in trial, which totalled five days, if I read his letter correctly.
THE COURT: That is the way I read it.
MR. TINGLE: And Mr. Leidner, as Mr. Truman stated, also made a request of the Court for jail. That is contained in the transcript dated September 12th of 2001 at page four. And he makes a request for jail time as well. I understand Mr. Truman's statement that a lot of this stems from paranoia and unfortunate paranoia that I think is borne out certainly to some degree by Defendant's Exhibit A. I can tell the Court that from my very limited dealings in the case, while Mr. White indicates that there were some, for lack of a better term, maybe shady dealings involved in the disposition of the case against The Globe, there were not. Those decisions were made based upon the strength of the evidence, probabilities of outcome, cost benefit analysis, and frankly, decisions ultimately made in the best interest of justice. The case was dismissed. And as I recall, $100,000 was donated to the school of journalism at C.U. as part of that disposition. Certainly we hope what Mr. Truman says about Mr. White's new-found respect for the court system at leas in terms of subpoenas is accurate. And certainly it is our hope that a message is sent very loudly and clearly to Mr. White that subpoenas are a serious matter and they cannot be taken lightly and they must be obeyed more appropriately, and legal action must be taken if he wishes to contest those matters in the future.
THE COURT: Thank you. Mr. White, is there anything you would like to say?
(Counsel confers with defendant.)
MR. TRUMAN: Mr. White indicates that he believes that all that needs to be said has been.
THE COURT: All right. Mr. White, if you would step up to the podium. I need to ask you a couple of questions. How old are you, sir?
THE DEFENDANT: I am 52.
THE COURT: What is your educational background?
THE DEFENDANT: I have a Bachelor's Degree.
THE COURT: In what?
THE DEFENDANT: Sociology.
THE COURT: From where?
THE DEFENDANT: University of California at Santa Barbara.
THE COURT: And what has your work been during your life?
THE DEFENDANT: I had a number of jobs in my teens -
THE COURT: Well, let's just say the last 20 years.
THE DEFENDANT: I own and operate an oil and gas exploration company.
THE COURT: Thank you. Can you give me a little idea of the size of that company, number of employees, annual gross.
THE DEFENDANT: Sorry, gross?
THE COURT: Annual gross, number of employees.
THE DEFENDANT: The business was very profitable and it had - in good years we made quite a bit of money-
THE COURT: I'm asking for numbers, sir.
THE DEFENDANT: A million dollars annually in certain years. We had anywhere from - early in the 1980's we had as many as 20, 25 employees.
THE COURT: Thank you. The facts here in so far as they are relevant to the issue of sentencing include the following: On April 30, 2001, Mr. White was served with a subpoena to appear at a motions hearing in the case of People v. Miller. He did not appear even though service was proper. That subpoena was for a May 3rd hearing. When he did not appear, he was called before Judge Tidball who made it crystal clear to the defendant that he was obliged to respond to subpoenas. Thereafter and on June 3, of 2001, he was subpoenaed to appear at trial. And even after having been strongly admonished by Judge Tidball about the necessity of complying with subpoenas, he failed to appear for Mr. Miller's trial. In his plea of guilty to indirect contempt, Mr. White acknowledges that one of the elements of the crime of indirect contempt to which he has now pled guilty was his willful failure to comply with the subpoena requiring his attendance on June 13, 2001. So - and it is appropriate for the Court to consider this in sentencing. There have been two failures to comply with properly served subpoenas, the second occuring after a very strong admonition made directly to Mr. White explaining to him how important it was that he comply with properly served subpoenas. And the Court finds it noteworthy that even today in advising Mr. White of his rights and in his written plea of guilty reciting what his rights are, one of his rights in connection with this charge of indirect contempt includes the right to compel the attendance of witnesses with regard to this charge by a court order called a subpoena. In Mr. White's written plea, he didn't add nor did the Court add in advising Mr. White today, but you need to realize, Mr. White, that people can either chose to comply with subpoenas or not; depending on how they feel at the moment. In other words, even in this very plea that has been taken today, there has been a recognition of this defendant that when his own personal rights are concerned, those rights include the very important right to compel the attendance of witnesses at proceedings involving him by means of a subpoena. Yet when a subpoena was sought to be used by counsel representing Mr. Miller in the underlying case, Mr. White took it upon himself to decide whether or not the subpoena is one that should be honored. Exhibit A submitted on behalf of Mr. White and consisting of some six and a half pages is essentially not relevant or material to this proceeding with very, very few exceptions, most of which I have now stated in this ruling. Mr. White's view of the Ramsey case and of all of the events surrounding the Ramsey case has absolutely nothing to do with his obligation or the obligation of any other citizen to comply with a properly served subpoena unless and until an order has been entered quashing that subpoena. What this Court frequently finds it necessary to say both in criminal cases involving serious crimes and in domestic relations cases and sometimes in civil cases is, Mr. White, and this applies to everybody, you don't get to make the rules. And you thought you did even after Judge Tidball made it clear to you that you didn't. The subpoena that was served upon - the subpoenas that were served upon Mr. White, although this probably isn't terribly relevant, were subpoenas caused to be served by Gary Lozow, a highly competent and responsible criminal defense attorney. And it is not up to Mr. White or any other witness in any case to decide "Well, I don't think there was any legitimate basis for me to be subpoenaed, so I just won't go." This Court has been involved in the legal process for over 40 years and often in those 40 years, and frankly mostly in civil cases, has encountered people like Mr. White who think they either know enough about the underlying case or their time is too important that they decide they will not comply with subpoenas. It happens with physicians, it happens with politicians, it happens with celebrities. And one of the messages that the Court has to send by the sentencing in this case is none of those people get to make the rules. And when a doctor gets subpoenaed in a personal injury case or when a celebrity gets subpoenaed in a domestic violence case or whatever the situation may be, the law does not treat people differently depending on their view of the underlying matter. In this case, we're dealing with a college educated successful businessman, a mature man. And yet, what has been presented to the Court is six and a half pages of unwarranted and baseless explanations as to why this individual, just like any other individual in our society, should not be required to respond to legally served subpoenas. Mr. White took this matter into his own hands. He didn't even seek counsel. He certainly has highly competent counsel now, but his counsel now is in the unenviable position of trying to justify the unjustifiable. The unwarranted attempts to excuse Mr. White's conduct contained in Exhibit A are not unlike the baseless and self-serving explanations that the Court often hears in criminal matters from people far less well situated in our society than Mr. White is. The Court acknowledges that indeed the impact on the trial may have been slight, if any. That has absolutely nothing to do with whether citizens are required to respond to subpoenas. The Court certainly takes into account what it has been advised, namely, that this defendant has no criminal record and that he has now acknowledged belatedly, very belatedly that there is no legal justification or excuse for his having failed to appear. This is one of those cases where when the Court considers the factors to be considered in sentencing, the most important one is the message that is sent to other people in our society who may at some time in the future be served with subpoenas that they find it either inconvenient to respond to or in their considered judgement, subpoenas they find baseless or maybe subpoenas in an underlying case that they find baseless, but it is not up to any of us, and the Court certainly includes itself, to decide whether or not to respond to a properly served subpoena unless and until and order quashing that subpoena has been granted. Is there a likelihood that Mr. White will again engage in such conduct in the future? No, there is not. Is there remorse? The Court doesn't really think so. The impression from Exhibit A is that the defendant knows best and he has been extraordinarily inconvenienced and put upon, all of which may be true, but does not exempt him, nor would it exempt anyone else from a properly served subpoena. The obligation to respond to a subpoena goes to the heart of the criminal justice system and in fact the justice system overall. Again, one of the rights the Court advised Mr. White about today that he has was the right to subpoena people to come to trial, and it shouldn't have been necessary for the Court to say as a subtext, and you actually have a right to expect them to respond to that subpoena. So I will tell both counsel that this Court's view is that number one, a jail sentence is in order; and number two, a jail sentence in the range that Mr. Lozow proposed is woefully inadequate to achieve the purposes that the Court believes must be achieved. Having said that, if either counsel has anything to add, I will hear it before pronouncing sentence. Mr. Truman.
MR. TRUMAN: Well, Your Honor, in this particular case, the circumstance of a jail sentence is a strong punishment indeed. As the Court knows the jail sentences, it is the first couple of days that have the major impact on people. And as the Court knows, there is news media in the courtroom today, and that will be reported -
THE COURT: I didn't know that and it certainly doesn't affect what I will do here today nor on any other day.
MR. TRUMAN: Understood, Your Honor. But in light of the Court's statement that the Court wished to send a message to others about the requirement to respond to a subpoena, I believe that the message will be disseminated as a result of the people here today.
THE COURT: I certainly hope the word gets out because people are going to respond to subpoenas if this court has anything to say about it.
MR. TRUMAN: Your honor, therefore, we would ask that the Court take into account the serious nature of a jail sentence and the fact that the first couple of days for a 52 year old man with no prior record and with no circumstances that have ever been exposed him to the Jefferson County Jail will be sufficient to sent the message to others that a subpoena is a required attendance and also to punish Mr. White for his failure to appear.
THE COURT: Thank you. Mr. Tingle, anything further?
MR. TINGLE: No, sir.
THE COURT: All right. I guess, Mr. Truman, my main problem is in this Court's awareness, Judge Tidball is pretty clear when she makes a statement. Judge Tidball told this defendant very, very clearly at the time of his ignoring of the first subpoena that, and I will paraphrase, he didn't get to make the rules; that the rules were the same for everybody. And he chose not only to ignore the subpoena, he chose to ignore Judge Tidball. And there have to be significant consequences. The court sentences the defendant to 30 days jail. Defendant is remanded. Will you please have a seat right over here in the jury box. I should make one more finding, and I will, that is that the misconduct of the defendant was offensive to the authority and dignity of the Court.