Monday, November 1, 2010

Don’t Push the Red Button! (It’s a $2,000 Fine for Criminal Contempt)


In re Pannu, 2010 VT 58

For some people, being told that you are not allowed to do something only makes you want to do it more.  That certainly seemed to be the case with Attorney Jasdeep Pannu, who was found in criminal contempt after violating a clear order from the trial court.  On appeal, the Vermont Supreme Court agreed that Pannu’s willful disobedience warranted the $2,000 fine for contempt.


Pannu, an assigned counsel contractor with the Defender General’s Office, represented a defendant who was charged with aggravated sexual assault, allegedly having engaged in nonconsensual acts with a thirteen-year old, J.C.  At pre-trial, Pannu fought to introduce evidence related to J.C.’s pregnancy, sexually-transmitted diseases, abortion, and statements J.C. made concerning her past sexual partners and juvenile record. 

The trial court indicated that all such evidence was inadmissible as it was either prejudicial, protected under the rape-shield statute, or both.  Under Vermont law, any evidence concerning prior sexual conduct of the victim is barred, subject to certain exceptions.  Here, Pannu argued that the evidence was relevant to the victim’s credibility, as well as to determining the “origin” of J.C.’s pregnancy.  While these are both exceptions to the rape-shield statute, the trial court made it abundantly clear that the majority of the evidence did not fall into any exceptions and was flat-out inadmissible.  Pannu could introduce evidence from the victim’s medical records concerning an alleged eighteen-year-old father but the remainder was out of bounds.

At the beginning of trial, Pannu once again objected to the court’s prior rulings concerning sexually-transmitted diseases, J.C.’s abortion, and the date of conception.  The court responded that the evidence was not allowed the last three times he asked, and that the ruling was not going to change.  So, the Detective gets on the stand, and Pannu begins his cross-examination. 

Guess what happens next. 

Almost immediately, Pannu asks the detective questions about the inadmissible evidence.  The State objects, the Court sustains.  Pannu asks a few innocuous questions, and then jumps into whether the victim mentioned she had sexual contact with three other individuals. 

“Oh outrageous, Mr. Pannu,” the court responds.  The jury is excused, and the judge warns Pannu that he is in contempt, and he needs to stop the shenanigans immediately.

When the jury returns, Pannu continues with his cross-examination, and he just keeps pushing that red button over and over.  Pannu leads the detective to talk about the abortion, as well as the date of conception.  The court sustains every objection, and once the cross-examination is complete, the court grants the State’s request for a mistrial.  Later, the court issues a written order finding Pannu in direct contempt under Vermont Rule of Criminal Procedure 42(a).

Whew!  Pannu appealed on the grounds that his behavior was not contemptuous because he did not violate any written or oral order by the court, and that nothing explicitly prohibited from asking the detective about the inadmissible evidence.  As the Vermont Supreme Court stated, there is no doubt here that Pannu was on notice that evidence concerning the victim’s prior sexual conduct (with the exception of the alleged eighteen-year old father) was barred.  The lower court could not have been clearer on this matter.  If, despite the number of times the ruling was clarified for the attorneys, Pannu still did not understand, he should have approached the bench to ask if his line of question was allowed rather than taking the risk. 

The Court also did not buy Pannu’s argument that he was acting as a zealous advocate for his client, given that the evidence he sought to produce was not only irrelevant, but “worse than worthless.” 

The Vermont Supreme Court noted that Pannu’s behavior was “particularly egregious given the purpose of the rape-shield law,” which exists to keep the focus of trial on prosecuting the defendant, as opposed to putting the victim on trial for prior indiscretions.  Such irrelevant evidence would only serve to confuse the jury and prejudice the victim.  Further, without the rape-shield law, other victims may be less likely to report a rape or assault for fear of their sexual history becoming public or judgment of their reputation.  

Not surprisingly, the Vermont Supreme Court ruled that the lower court “acted well within its discretion in finding Pannu in contempt,” and Pannu owed the $2,000 fine, which covered the cost of selecting a jury and one day of trial.  

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