rebuttal i understand and i assure you that feeble attempt will be my last attempt at humor in this case this case of monumental significance to my client who has been unfairly stigmatized by a finding of criminal contempt he is a high minded and principled warrior and i want to devote my energies to discussing that with you this morning this case originates from a federal diversity foreclosure action filed cases say that you have the appeal the authority to look at the record in sr tribunal's including state court cases these cases are cited in our brief at footnote eight on page forty two and forty three and with your indulgence i would like to give you just a little bit of the background about the orbit case because i think i've got we've we've got a few questions and we have to understand the record soak very good you know i think one way of thinking about the case is that  you know we generally try to give the benefit of the doubt to the district court judge the absolute difficult job they're the ones with a ringside seat on what's going on that's why we defer to them and so i personally usually see myself as trying to construe the record in a way that supports what it district court judge has done here and you start out by saying it's criminal contempt that's the key point here he says he's applying the clear and convincing evidence standard one would assume that's because he thinks what he's doing is civil contempt and so why why isn't that relevant what the judge thinks he's doing in you know why shouldn't that control how we handle the case i mean he says clear and convincing and i don't think that's the only thing i think but that's certainly one of the things that suggests he doesn't think he's it's criminal contempt and isn't that important it's first of all the case comes out the same way whether you apply the civil contempt rules of the criminal contempt rule but let me go right to the hear question it's criminal contempt because you look at the penalty that was imposed a civil contempt is coercive in nature is remedial it's designed five hundred dollars is not a big big number so and you would agree five hundred dollars doesn't by itself suggests criminal contempt the supreme court says fifty dollars should just criminal contempt we cite the case in our brief depending on other circumstances broke fifty five hundred one thousand one hundred thousand can be  so that keep going but the reason is is there was nothing coercive about this thing there wasn't a civil contempt order is designed to get you to do something to comply with the prior order there's nothing the brown english can do in his case to comply with the orders of the judge thought he violated ok time like a thousand dollars a day and as soon as you complied and the thousand quits running that's right ok this is this is this is punishment issued for a prior act that the judge thought was offensive ok that is criminal that is a criminal act i'm sure you are that why dabdoub it as chemo day or anything just went at five hundred dollars because of what you did that's what it is and that's a criminal contempt sanction because there is nothing the brain english can do to escape it it is not remedial it's not going to huntington bank it isn't any any payment for any past grievance against huntington huntingdon in didn't even initiate this action they really didn't want anything to do with it and their absence here today corroborates that they really wanted no part of this thing they didn't at the at the conclusion of the first hearing when judge adams turned to  feel about a judge this is strictly between you and mr english over here this does not involve us the judge could put on an order and say tell us what your tell me what your attorney's fees were in your expenses and they did that but that was in response to  direct order from judge adams and you don't if this case teaches anything as you don't cry full with judge adams when he gives you a direct order sure they've submitted i think when they were given when when we filed the first appeal when i filed the first appeal and was dismissed for a lack of a final appealable order and it went back to judge adams and judge adams clerk contacted hunting and said you still want to go forward this and they said no in did not and agreed with us that we could file a motion of vacate the contempt order of a wish to show up for court that's what the problem was it is he didn't show up on two occasions it went to another court and he was he was in another court and he was obligated to be in that court and that was a preexisting obligation and that was judge god acted that judge and said i can't be there he did that many times your honor he did it over and over and over again and it seemed only to the poor more gasoline on the fire adams did falls under the category of criminal contempt point number one and point number two the procedural requirements that you need to check off before imposing criminal contempt haven't been met here so let's just say you're right about those two things i take it then the remedy is to send it back for judge adams to you know you know given the back of the doubt if you can check those boxes you can check those boxes but if you can then it gets a judge judge to we don't really ask for that remedy in this case because that is my worst nightmare because all that does is prolong the obvious to manifest injustice in this case in you here before you even clear you have it you have a clear record in front of you that this that that a mr english is failure to appear on october twenty one is certainly excusable because there was no clear order directing him to do so that order was put on ordering bruno to be there on october twenty fourth the upshot is you don't want to send it back what you want us to do if you're right just to make sure you understand the question you're right about it being criminal contempt you're right that the procedures for imposing come the contempt weren't satisfied now what you get to write the opinion it says those two things those two things alone what's the punch line punch line is vacate the order of contempt because despite all of those procedural irregularities in fact we didn't get even more evidence in the record there is enough evidence in the record to show the disc was dot will for contempt brant english could not appear which the third step is we rule as a matter judge judge adams says i got to be at bubba well let's back off we may be done with trial here and it will be an issue in the day before it's we're still in trial in cleveland in cuyahoga county he goes back to judge mcmonagle judge your honor i've got more orders here from from judge adams saying i got to be in his courtroom tomorrow morning at ten o'clock misjudge mcmonagle could you call judge adams and maybe the two you judges could work at this shop together maybe i could appear in for in front of judge adams in eight and you will start trial until ten judge mcmonagle says final be happy to do that cole judge adams and world war three almost breaks out ok judge adams  testimony about that judge adams or by that it is a judge or it is it comes from two sources there is testimony from my client brant english at the contempt hearing that was held in front of judge adams later that day  decide if judge adams was not supposed to be tried this thing is evidence still before us if it was taken in his court yes it is because the record is the record i mean you know you've got the records under oath isn't it right that on the transcript here's what i did i talked to adams adams said this i said that right you did and that was that transcript was one of those rapidly produced transcription on an hour's notice by the court reporter the br introduced as exhibits at the contempt hearing there in the appendix to our brief but i didn't read them so going back to the to get to the legal point is it your argument that adams committed legal error by finding willfulness when no reasonable finder could find wilm fulness given this clash of judges that is precisely the point you're o twenty first you have a factual argument clear error of fact for the twenty ninth you have an error of law because no one could find willfulness that a fair present that is a fair presentation i would also say that as a matter of law on the twenty first it was not only a clear or a fact as a matter of law the order did not apply to him he was nowhere mentioned that order was put on months at least a month before judge can you give bruno a little bit of an extension of time on his hearing so that i can appear and that motion was denied what that means to me what i think it reasonably means is your motions tonight i'm not going to let you appear represented him early on a done a good job on his feet in the court room he had previously represented himself in a debtors exam six or eight months before he's been in front of this court multiple times i mean filing sophisticated  legal procedure he was not be reffed he was not at all admit he was not of all left out in the lurch by having to represent himself he was doing after two years furthermore if there's any ruling in this case or in this don't have a constitutional right to a lawyer you've got a statutory right but that right is subject to limits and one of them is you can't exercise that right in a way to delay the proceedings and when you come in two days before here are three years before answer i need a continu english was i got to go to the hospital when brian english got the order saying no he called brown said you've got to be there i'm in trial i'm not going to be with you but you got to be there mr bruno bruno showed up prepared to go forward it was adams for going forward on the twenty first and i see my time is about up if you have any other questions i'll be happy to answer them i think i think we understand your point thank you are you very much appreciate