Rule 139. Disposition; notice and hearing

(a) Form of notice, how given. A criminal contempt, except as provided in Rule 138 shall be prosecuted on notice, and if it occurs in a cause it shall be prosecuted in the cause in which it occurs. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the contempt charged. The notice may be given orally by the judge in open court in the presence of the person charged with contempt, or by an order to show cause or an order of arrest.

(b) Bail. If the person charged with contempt gives to the clerk of the court in which the contempt is being prosecuted, a good and sufficient bond or cash deposit in lieu thereof for his appearance at the hearing, approved by the judge of the court, he shall be admitted to bail pending the hearing.

(c) Designation of prosecutor . The court may designate as the prosecutor of the proceedings, the Attorney General of the Virgin Islands, or any other attorney of this territory.

(d) Disqualification of judge. Except as provided in Rule 138, if the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the consent of the person charged with contempt.

(e) Pleas. Where an order to show cause is made, the person charged with contempt may, not later than one day before the return day of the order, or within such time as the court may allow, serve an answer or an answering affidavit, or he may plead orally at the hearing.--Amended Oct. 14, 1994, eff. Nov. 16, 1994.

Authority of court

Error

Authority of court

Although the territorial judiciary may designate the Attorney General or the United States Attorney to prosecute criminal contempt proceedings, it is equally authorized to designate a private disinterested attorney to do so. Government of V.I. v. Santiago, D.C.V.I. 1996, 35 V.I. 130, 937 F. Supp. 1157.

Error

Where the trial judge failed to follow the procedure set forth in V. I. Terr. Ct. R. 139, the trial judge's actions constituted reversible error. In re Horton, 2003 U.S. Dist. LEXIS 3054, -- V.I. --, -- F. Supp. 2d -- (D.C.V.I. Feb. 5, 2003).

Since the public defender's alleged contemptuous behavior occurred outside the actual presence of the trial court and the trial court did not certify that it saw or heard the conduct constituting contempt as required by V.I. Terr. Ct. R. 139, the summary disposition of the contempt was improper and the public defender was entitled to due process protections, including the right to counsel. In re Horton, 2003 U.S. Dist. LEXIS 3054, -- V.I. --, -- F. Supp. 2d -- (D.C.V.I. Feb. 5, 2003).

Where a private attorney was undeniably counsel for the parties who were the beneficiaries of the Court Order under review, the attorney's appointment or ratification to act as special private prosecutor by the Court constituted reversible error, regardless of the facts and circumstances. Government of V.I. v. Santiago, D.C.V.I. 1996, 35 V.I. 130, 937 F. Supp. 1157.

While the refusal by the correctional officers and officials to follow the court's handwritten release Order constituted disrespect to the judge, the act was done outside of his presence, and the contempt charge was prosecuted "on notice" in accordance with Terr. Ct. R. 139(d) and/or Fed. R. Crim. P. 42(b); however, permitting the judge to preside over the contempt proceeding without the consent of the correctional officers and officials charged, constituted reversible error. Government of V.I. v. Santiago, D.C.V.I. 1996, 35 V.I. 130, 937 F. Supp. 1157.