Alabama appeals court reverses Mobile lawyer’s contempt citation

The Alabama Court of Criminal Appeals on Friday unanimously reversed a Mobile County judge’s criminal contempt citation against a lawyer who was trying to serve another lawyer with a subpoena.

The lawyer held in contempt, Christine Hernandez, now will not have to the $100 fine that Mobile County Circuit Judge Wesley Pipes imposed last year.

“It just goes to show that I’ve now been vindicated,” she told FOX10 News. “I was never in contempt.”

Attorney Scott Hunter, who represented Hernandez on the appeal, told FOX10 News that he and his client are pleaded with the ruling.

“Because of the oath we attorneys take, a criminal contempt finding has a much, much greater impact than a $100 fine, as she would have to report this conviction to the Alabama State Bar,” he said in a statement. “Christine is a zealous advocate, but she always shows her respect for The Court.”

The incident occurred in November during a murder trial over which Pipes was presiding. Just after closing arguments, a process server served defense attorney Chase Dearman with a subpoena related to a case in which his former secretary was charged with stealing money from his law firm.

Dearman asked the judge for a mistrial, arguing that it might prejudice jurors who saw the exchange.

Pipes held off ruling on that issue, but 10 days later, he conducted a hearing in which he took testimony from the process server and Hernandez, who represented Dearman’s former secretary and had hired the process server. The two offered different versions of what happened. The process servicer, Eddie Stokley, testified that Hernandez told to serve Dearman before court. She testified that she told him to wait until after the trial.

Pipes made clear he believed Stokley.

“Finally, the testimony on this issue is contradictory and it is my determination that Stokley’s is true,” he said, according to a transcript included in the appellate court decision.

In a written ordered issued three days later, Pipes wrote: “Further, it is the court’s determination that Hernandez directed Stokley to do so for no legitimate reason and that it was done to make a point to [Dearman] in their ongoing and completely unrelated saga involving [Dearman’s] former secretary, whom Hernandez represents.”

The appeals court ruling by Judge Chris McCool focused on whether the process server had any impact on the trial. McCool pointed to a statement by one of the jurors questioned by Pipes. He said that he had seen Stokley and Dearman but did not see the process server hand anything to the lawyer and that he did not know what the Stokley was doing.

“In short, then, there is simply no evidence to support the conclusion that Dearman’s client’s trial was tainted in any way by the service incident,” McCool wrote for the court.

McCool wrote that constructive criminal contempt occurs when someone obstructs the administration of justice. In this case, he wrote, there is no evidence to support that contention. The jury did not reach a verdict that day, and Dearman’s client pleaded guilty the nest day.

McCool wrote that Hernandez’s actions demonstrated “a lack of wisdom” on her part but that the law requires more than “speculation as to what could have occurred” as a result of her actions.

The decision reads: “We can certainly envision scenarios in which serving Dearman with a subpoena during his client’s murder trial could have interfered with the trial, and we understand why Judge Pipes was frustrated with Hernandez’s decision to effect service at that time and why he believed there was no valid reason for effecting service at that time; nevertheless, although Hernandez clearly demonstrated a lack of prudence in that decision, there is no evidence, testimonial or otherwise, to support the conclusion that the service incident interfered with the trial.”

Hernandez said Friday that she told the truth in her testimony.

“The judge said it could have been worse, or it could have this, or it could have been that,” she said. “And the reality is this: Contempt requires a whole lot more than could have been. And if the process server had done what I told him to do in the first place, I don’t think we would have even been in that situation.”

Hunter noted that the judge spent a great deal of time during the contempt hearing on hypotheticals.

“We cannot convict people, whether attorneys or not, of criminal charges on what might have or could have happened,” he wrote. “This is a classic case of ‘no harm, no foul,’ and the Court of Criminal Appeals recognized that.”

Updated at 12:06 a.m. on Oct. 8 with comments from attorney Scott Hunter.

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