BillTheCat wrote:
Piffle wrote:
For a variety of reasons, Orly cannot be convicted of champerty in these proceedings. Just as Orly cannot bring criminal charges against President Obama, Mr. Begley cannot directly bring criminal charges against Orly.
I'm curious if you could expand on this a little?
Why can't she be convicted of that? And if she can't, what other remedies may she face otherwise as a result of this hearing?
First, keep in mind that I didn't say or imply that Orly can't be convicted of champerty in Mississippi -- only that she cannot be convicted in these
civil proceedings. A criminal conviction can only result from a
criminal proceeding brought by the state.
Among other things, a criminal defendant must first be arraigned -- a formal proceeding in which the accused is read the charges being brought against him/her and given the opportunity to enter a plea. The charges, whether in the form of an information or indictment, are presented by an attorney representing the people (i.e., a duly appointed and sworn
prosecutor), not a private party. Simply put, even if this Court were sitting as a criminal court (it is not), the hearing scheduled for the 16th in this case is not an arraignment and, absent an arraignment, there can be no conviction.
The notable exception is
direct criminal contempt of court for behavior that occurs right before the "eyes of the court". This is a strictly punitive power of the court often said to be "inherent" because it is necessary to ensure the administration of justice. (There is a second type of contempt -- civil contempt -- that is coercive rather than punitive in nature, but that's another topic altogether.) Because the judge is effectively an eye-witness to behavior that occured within the court itself, the contemnor can be thrown in the slammer, right then and there.
[But even in cases of direct summary contempt, the defendant/contemnor has due process rights and the episode may lead to further proceedings separate from the underlying case. Where this occurs, the charges are brought by the court's own notice (as opposed to an information or indictment) and the judge may appoint an attorney to prosecute the matter (usually, but not always, the district's prosecutor).]
So what are the limits of Orly's criminal exposure here? Shooting from the hip...
1. If her courtroom behavior is sufficiently egregious and/or if she explicitly refuses to obey an order, then contempt of court.
2. If the record so warrants, the court could refer the matter to the attention of the appropriate prosecutor (e.g., for champerty or perjury). But referral does not commence an action
per se, as the prosecutor still would have prosecutorial discretion to pursue criminal charges or not, as with any other set of facts that comes to his/her attention.
In practical terms, we're back in territory that is familiar to any devoted Orly watcher: monetary sanctions, a good tongue lashing and referral to the CA and/or MS state bar disciplinary authorities. (I have no idea about the extent to which there might be a legal basis in Mississippi for declaring someone a vexatious litigant or restricting future filings without prior leave of court.)