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The N.C. Court of Appeals earlier this month reversed two decisions made by district court Judge Clinton D. Rowe concerning cases in New Hanover and Onslow counties.
One of the reversals throws out Rowe’s November 2022 order that held a defendant in criminal contempt of court for submitting false written income information.
At a hearing about a probation violation for a gun-related conviction, Khalil Hardy filled out an indigency form—used so judges can evaluate whether defendants are eligible for court-appointed counsel—and reported he made no money.
Hardy had flown from where he was living in Georgia to North Carolina to attend the hearing and told Judge Rowe his family paid for the plane ticket. Rowe asked Hardy why he didn’t work, but Hardy told him he was employed by a temp service and that he paid bills.
“Well, you put on here you have no bills and you have no income,” Rowe said, referencing the form.
“Yes, sir,” Hardy replied.
“So explain to me why I shouldn’t hold you in contempt for not being truthful on this,” Rowe said.
“I don’t know, sir.”
Rowe then ordered Hardy in contempt of court and told him he would spend 30 days in jail for perjury.
In North Carolina, judges have some latitude to deem court participants in contempt to uphold basic decorum, safety, and integrity of the legal process. State law requires a “willful” disobedience of court authority to be found in criminal contempt, which can mean jail time.
But judges’ discernment has differed on what exactly “willful” means. In 2008, the state court of appeals reversed a judge’s decision in Lee County that found a defense attorney in criminal contempt when her cell phone rang while the state questioned its witness.
While the attorney admitted she should have known to silence it after years of practicing law, the appeals court concluded in 2008 she “merely made a mistake” and that “her actions were not willful.”
Judges’ attempts to criminalize tardiness have also fallen short of the “willfulness” guidepost.
People who are found in criminal contempt generally disrupt court proceedings by actively impeding in some way, according to the appeals court’s decision earlier this month. This spring, Wilmington Councilman Kevin Spears spent a night in the Columbus County jail after he was disruptive, “voiced continued irrelevant banter,” and refused to answer “basic questions about his own exhibits” while on the witness stand during a child support hearing.
Criminal contempt doesn’t have to be noisy: In 2018, the state appeals court upheld a 2017 Robeson County contempt ruling for a defendant who pointed a finger gun at his head while staring at a witness during their testimony.
In the case of Hardy—the New Hanover defendant who on paper claimed no income but verbally admitted differently—the appeals court ruled Rowe overstepped the court’s authority. Hardy was readily answering questions honestly, despite the written discrepancy, the court concluded.
“This behavior does not amount to a ‘bad faith disregard’ for the trial court’s authority,” the ruling states, “nor does it implicate any sort of ‘stubborn resistance.’”
In other words, the judge could have kept asking clarifying questions about the defendant’s income instead of ordering him to jail.
Below: The Court of Appeals ruling.
