Clifton Williams of Will County, Illinois got alot more than he bargained for when he yawned at an inopportune time during a hearing into his cousin’s guilty plea to a felony drug charge. As reported in the American Bar Association Journal and Chicago Tribune, Judge Daniel Rozak sentenced Williams to six months in jail for criminal contempt for what the Prosecutor described as “a loud, boisterous attempt to disrupt the proceedings.” Williams’ father disagreed, saying “I was flabbergasted because I didn’t realize a judge could do that. It seems to me like a yawn is an involuntary action” and Williams’ cousin, the defendant in the case, weighed in and said that “it was not an outrageous yawn.”

The Chicago Tribune undertook a decades worth of contempt citations and found that Judge Rozak was responsible for issuing a third of them, usually for cell phones going off or shouting by spectators during the proceedings. As noted by the Tribune, criminal contempt in the face of the Court can occur where there are acts that embarrass, hinder or disrupt the Court in its administration of justice or lessen its dignity.

The situation was perhaps best summed up by Williams’ aunt, with whom he resides and cares for his 79 year old grandmother. “This is ridiculous – you’ve got all these people shooting up kids, and here this boy yawns in court [and gets six months]. It’s crazy. This could happen to any one of us.” Williams was eventually released by Judge Rozak after serving three weeks in jail.

Trial lawyers are constantly searching for those elusive qualities of clients and witnesses which will capture the attention of the Court and result in favourable treatment by a judge or jury. Opinions on the subject are frequently based on little more than gut reactions. In the recent case of Catholic Children’s Aid Society of Toronto v. Nikesha B., Madam Justice Heather Katarynych of the Ontario Court of Justice gave a helpful summary of her observations of the mother in that case, who was facing the loss of her child to adoption as a result of her battle with mental illness. Justice Katarynych’s moving tribute included the following:

“She [the mother] paid attention to her personal appearance and was unfailingly well groomed. There is a generosity of spirit about her. She presented herself throughout the trial, and in the face of difficult testimony, with great calm. She paid careful attention as the society unfolded its case against her. The only time she showed impatience and it was brief, occurred when society counsel was being particularly obtuse with her at one point in cross-examination of her. She displayed good understanding of the court’s task. She was thoroughly attentive to the witnesses, refrained from dialogue with her counsel or others when witnesses were in the midst of their testimony, refrained from body language designed to draw the courts’ attention to herself rather than the witness and was responsive to the courts’ directions. She displayed good stamina. Her own evidence was presented over the course of three days. She was articulate. Her answers to questions, whether posed by her own counsel or society counsel, were responsive and thoughtful. She displayed excellent listening ability and excellent ability to communicate her evidence, faltering only briefly when society counsel asked about the sorts of symptoms that indicated to her that her mental health was deteriorating. The question was appropriate cross-examination. It was nonetheless apparent that this concentration takes this mother to a place in her being that is quite raw.”

Although Justice Katarynych decided in favour of the society, it seems to me that her words of wisdom and insight into the qualities of a good witness extend well beyond the case before her.

On August 5, 2009, entertainment moguls Garth Drabinsky and Myron Gottlieb were sentenced to seven years and six years respectively for fraud in relation to their conduct of the business of Livent Corporation. The trial judge, Madam Justice Benotto of the Ontario Superior Court of Justice found them guilty of numerous manipulations of the accounting records and financial statements of the company, saying “Complex systems were in place at Livent to effect all these manipulations. Employees knew that entries in the books were being moved. One employee spent his entire time moving expenses from one place to another. He knew it was wrong but had a family to feed.”

The Crown asked Justice Benotto to impose a sentence of 8-10 years. The defence sought conditional sentences to be served in the community of two years less a day, which would include speaking tours by the Defendants with lectures “inspiring young people” and on “business ethics.” Justice Benotto correctly observed that in cases of large scale fraud, general deterrence must be a paramount sentencing goal. In summarizing the general principles of sentencing in such cases, she said:

“The business community must be put on notice that deception and dishonest dealing will be punished severely, whether the victims are the vulnerable and unsophisticated or well-resourced financial institutions driven themselves by a desire for profit. The members of the business community must understand that honesty is the currency in which they trade.”

In applying these important principles to the case before her, Justice Benotto concluded:

“Mr. Drabinsky and Mr. Gottlieb presided over a corporation whose corporate culture was one of dishonesty. Corporate fraud such as this results in tangible losses to employees, creditors and investors. It also results in less tangible, but equally significant loss to society. It fosters cynicism. It erodes public confidence in financial markets. The Court has a duty to strongly denounce such conduct. Those in business must know and the community must know that this will be the Court’s response to corporate fraud.”