Many make much fanfare about the United States criminal justice system’s right for criminal defendants to remain silent, to have a trial, to be presumed innocent unless and until found guilty beyond a reasonable doubt, and the right to counsel.

However, the courts where I practice interpret the United States Constitution as not requiring the right to counsel, nor a trial for summary contempt proceedings where the judge witnesses the contemptuous behavior. Moreover, the Virginia Supreme Court last week confirmed that at summary contempt proceedings, within certain boundaries the judge may ask questions of the contempt suspect, without providing the right to counsel, and still leaving the judge to use the answers against the suspect. Scaldione v. Virginia, ___ Va. ___ (Feb. 26, 2010).

Fortunately, Scaldione orders a retrial for three summary contempt defendants where the judge did not see the allegedly fraudulent exhibit redaction that took place out of her sight. The same judge pressured the contempt defendants about the computer user name "westisanazi" that showed up on a defense exhibit, and one of them said he did it because of his disagreement with some of the judge’s rulings during a sex offense Circuit Court trial.

Before the contempt defendants won on appeal, the judge sentenced them to ten days in jail, which sentence was stayed pending appeal by the appellate courts. However, after the defendants won with a Virginia Court of Appeals panel, the en banc court reversed. Fortunately, the Supreme Court of Virginia saved the day.

However, how much of a victory will this reversal be if the new contempt trial is before the same judge? Recusal is called for.