Monday, November 9, 2009

Solo Who Made Obscene Gesture Before Judge Loses Appeal

Ok so you can't do this!!

Adam Reposa, the Austin, Texas, criminal defense solo who made a gesture simulating masturbation toward a prosecutor while standing before Travis County Court-at-Law No. 6 Judge Jan Breland, faces 90 days in jail. In an 8-1 decision Wednesday, the Texas Court of Criminal Appeals denied Reposa's application for a writ of habeas corpus in his contempt case.

Judge Lawrence Meyers, the lone dissenter in Ex Parte Adam Reposa, did not write an opinion. The CCA's unpublished opinion, written by Judge Paul Womack, presents the following summary of Breland's testimony at Reposa's contempt hearing: On March 11, 2008, Reposa appeared as counsel for a defendant in a criminal case in Breland's court. Breland asked Reposa to stop whispering to his client while she was trying to explain a plea offer to the client. After the prosecutor, Assistant County Attorney Bill Swaim, protested about Reposa's continued whispering, Reposa made the simulated masturbation gesture toward the prosecutor while looking at Breland.

Acting on Swaim's motion, Breland held Reposa in contempt. Senior Judge Paul Davis of Austin, sitting by assignment, subsequently found Reposa guilty of contempt and sentenced him to 90 days in jail. Reposa appealed to the CCA on June 2, 2008. The CCA had set bail for Reposa pending the disposition of his case.

In its decision Wednesday, the CCA overruled Reposa's five issues challenging the judgment of contempt and sentence. With regard to Reposa's challenge to the sufficiency of the evidence, Womack wrote for the majority, "Regardless of the fact that the gesture was not directed at Judge Breland, it nevertheless was a purposeful act of disrespect and an affront to the dignity of the court. As such, it rises to the level of criminal contempt."

Swaim declines comment on the CCA's decision.

When told of the CCA's decision, Reposa said, "Oh well." When asked what happens next, Reposa says he doesn't know. "I need to talk to my lawyer," he says.

Karyl Krug, who represents Reposa in the habeas corpus writ application, says she is surprised the CCA issued an unpublished opinion in a case involving issues of first impression. As noted in the CCA's opinion, Reposa had argued that the case was one of first impression because of the "extreme ‘extraneousness'" of evidence presented at the contempt hearing, including the introduction of Whoopsy!, a magazine distributed in Austin night clubs that featured an apparently satirical ad by a lawyer identified as "Bulletproof, the DWI stud." Reposa identifies himself as Adam "Bulletproof" Reposa on the State Bar of Texas Web site.

Krug says Reposa can file a motion for rehearing with the CCA but that there has been no decision to do so. Travis County Attorney David Escamilla says, "The real take-away from this legal saga goes beyond what happens to this lawyer. It's a sobering reminder to our profession that the standards of decorum in our courts apply to everyone -- defendants, victims, witnesses and lawyers."

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