PANAMA CITY — The attorney for an attorney charged with criminal contempt of court scrambled to file an emergency petition with the appeals court Friday after the judge declined to disqualify himself from deciding a case he initiated.
Attorney Bill Price already had asked Judge James Fensom to disqualify himself from presiding over his criminal trial, which is scheduled for next week, arguing he doesn’t believe the judge who initiated the charges will give him a fair trial. Fensom denied Price’s request.
Price, who faces possible jail time and bar sanctions if convicted of the misdemeanor, hired attorney Walter Smith to represent him, and Smith asked Fensom to reconsider. Smith’s argument was that Florida Rules of Criminal Procedure require a judge to step aside in a contempt case that involves disrespect to or criticism of the judge. In such a case, the chief judge would appoint another judge to hear the case.
Prior to a recent felony trial in which Price represented the defendant, Fensom warned Price not to bring up certain subjects in front of the jury. Specifically, Price was not to refer to the gender of a transgendered witness for the prosecution or the possible penalties for his client if she were convicted.
“You’ve got to try to attack the state’s case, and he was doing that the best he could,” Smith said. “That’s what got him in trouble with the judge.”
According to Smith’s motion, Price at one point told Fensom: “Your ruling is wrong, so I will try to get around it.”
If that’s true, Smith argued, Price’s attempt to avoid abiding by a ruling he disagreed with could be perceived as disrespect.
Fensom, during a brief hearing Friday morning, said he would not disqualify himself.
“The train has left the station,” Smith said after the hearing.
Smith said the ruling puts Fensom in the position of victim, juror and sentencing judge, which raised serious doubts in his mind that Price’s due process rights, such as the presumption of innocence, would not be violated.
“That’s an impossibility for anybody,” Smith said. “I don’t care if you’re a judge or King Solomon; you can’t sit in that role.”
It was Fensom’s ruling that was allegedly violated, it was Fensom who charged Price and, unless Smith’s emergency petition to the 1st District Court of Appeal receives prompt attention, it would be Fensom who determines Price’s innocence or guilt and subsequent sentencing.
Smith wasn’t sure if the appeals court would even see his petition in time because the trial was less than a week away. Smith also asked to postpone the trial to allow for the appeal, but Fensom wouldn’t go for it.
“I think it takes five business days to do anything in any situation,” he said. “At this point we’re just trying to get a hearing in front of someone who hasn’t made up their mind yet. At this point I don’t think Judge Fensom can presume him innocent.”
The contempt charge against Price is a misdemeanor and he could be sentenced to up to six months in jail, but he doesn’t have a right to a jury trial. He could also be subjected to sanctions from the Florida Bar, Smith said.
“It’s a serious thing for an attorney to be charged with criminal contempt of court,” he said.