In a move that veteran court observers say they cannot recall seeing before, a Hennepin County judge this week found a highly regarded defense attorney in contempt for failing to show up to the start of her client's trial and referred the case for possible criminal charges.
The strained courtroom relationship between Judge William Howard and attorney M. Tayari Garrett started months ago when he repeatedly denied a variety of pretrial motions in the mortgage-fraud case, and she claimed he violated state trial-procedure rules in several instances. This led Garrett to ask for Howard's removal from the case on grounds of judicial misconduct and racial bias against her and her client, both black women.
In his contempt order Wednesday, Howard wrote that his decision was based squarely on Garrett's failure to appear for trial May 2 or any other date until she was discharged as counsel May 11. He said she also failed to provide a good reason for her absence, but Garrett contends she made it clear that she had a medical emergency in Dallas.
Now, the matter has been referred to the county attorney's office for a possible misdemeanor contempt charge. Office spokesman Chuck Laszewski said nobody could recall the last time, if ever, an attorney was threatened with prosecution for contempt.
During a hearing this month, Howard said that "I've never seen behavior like this in 39 years in law, including 20 on the bench. It was flagrant, knowing and intentional. I don't like that. I can't do my job."
Garrett, 35, who runs her own law firm based in Dallas, said Thursday that she hadn't been notified of the contempt order. She said that there is "no meat" behind it and that she believes Howard's action has "everything do with my public allegations of racism, judicial bias, incompetence and misuse of power." If charged, she plans to fight in court, she said. She has already filed a complaint with the state's Board on Judicial Standards.
"After my allegations, Judge Howard found me in a vulnerable position because of my illness and used that as an opportunity to assassinate my character in open court with half truths and ignorance," she said in an interview from Dallas.
Rick Petry, Garrett's attorney in the contempt case, said he has always found Howard to be a good judge. Howard and the prosecutor may have been frustrated because the case got bogged down in motion actions, Petry said. "Ms. Garrett did not intentionally try to deceive the court and didn't do anything improper," he said. "This is not the end of the story."
The case behind the case
The beginning of the story is the case of Efay Martin-Mahuru, who is charged with theft by swindle over $35,000. She is accused of helping Edward Boler and Susan Newell in a $2.8 million mortgage fraud scheme involving homes in Minneapolis, Richfield, Brooklyn Park and Champlin in 2005. Boler and Newell have been convicted.
In January, Howard set a May 2 trial date. Over the next two months, a number of motions by Garrett, including one for a continuance of the trial date, were denied. In April, she again asked for a continuance because of a wedding in Europe, the unavailability of a key witness and discovery issues. Howard again denied it.
"The fact I dare speak and put my objections on the record in open court, that's when he turned on me," Garrett said. "I continued to be respectful to the court, even though I had a problem with the judge. Last time I was in court, he wouldn't even look at me."
'Unwarranted and unfair'
After her April motion was denied, Garrett requested Howard's removal. She raised many of the previous issues and wrote that the judge's actions rendered her incapable of providing adequate counsel.
A week later, Chief District Judge James Swenson denied her request. He wrote that her claims were supported with little documentation. Charging Howard with bias against the defendant in the case was unwarranted and unfair, he said. "Although the charges are serious, and I take them seriously, I find nothing to suggest they are the least bit warranted," he concluded.
Garrett then filed another motion seeking reconsideration of a continuance and Howard's removal. She said she had spoken to others in the legal community who expressed the opinion that Howard was a bigot in refusing to visually acknowledge her presence in the courtroom and submitting arbitrary orders that were contrary to law or history.
On the May 2 trial date for Martin-Mahuru, Garrett didn't appear in court; she was hospitalized in Dallas. She arranged for substitute counsel, and Howard gave her a day to provide documentation of her hospitalization and of travel arrangements she had made, as well as an indication of when she could proceed. After assorted communications, the judge allowed her to handle a May 5 hearing by phone.
She told the court she could start the trial May 16, but Howard said she hadn't provided information on why she couldn't appear before that. In the interview this week, Garrett said she gave Howard the necessary paperwork and offered to have him talk directly to her doctor.
Howard held a contempt hearing May 11. Martin-Mahuru, the defendant, agreed to discharge Garrett and have Petry as her attorney. Howard chided Garrett for never confirming her "mystery illness." "There has to be some sanction for her unwillingness to offer a reasonable excuse when she didn't show up for hearings," he said. "I'm disturbed she didn't meet her professional obligations as a lawyer."
Howard did have the option of finding Garrett in contempt from the bench, which wouldn't involve possible criminal charges.
Joe Friedberg and Earl Gray, two prominent Twin Cities defense attorneys, called Howard a good judge. Friedberg also said that his contempt order is unprecedented.
Garrett splits her time between Minnesota and Texas, handling mostly federal cases. She worked on victim lawsuits involving the I-35W bridge collapse and was an adjunct professor at the University of St. Thomas School of Law and an adjunct writing instructor at William Mitchell College of Law in the Twin Cities. She was an honor student at Syracuse University College of Law and has a master's degree in public administration.
She said Howard's contempt order supports her earlier charges that he has personal issues with her and her client. "Honestly, my client's life is on the line and he's playing games," she said.
David Chanen • 612-673-4465