                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 14-3730
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

KARENZA S. PICKERING,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Western Division.
          No. 14 CR 50056-1 — Frederick J. Kapala, Judge.
                     ____________________

        ARGUED JULY 8, 2015— DECIDED JULY 23, 2015
                 ____________________

   Before POSNER, SYKES, and HAMILTON, Circuit Judges.
    POSNER, Circuit Judge. On June 17, 2014, Karenza Picker-
ing was mailed a summons to show up for federal jury duty
on July 18. A follow-up letter, intended to remind her of the
summons, was mailed on July 8. When she neither respond-
ed to the summons nor appeared for duty on July 18, the dis-
trict judge asked the Justice Department to institute a crimi-
nal contempt proceeding against her. The government re-
sponded by filing a motion for a rule to show cause why the
2                                                 No. 14-3730


defendant should not be held in criminal contempt of court
for failing to obey the summons, a procedure authorized by
Fed. R. Crim. P. 42(a)(1) despite its seeming tension with the
requirement that there must be proof beyond a reasonable
doubt to convict a person of a crime. Cf. Federal Trade Com-
mission v. Trudeau, 579 F.3d 754, 769 (7th Cir. 2009). The ten-
sion can however be dissolved by noting, as the Eighth Cir-
cuit did in In re Van Meter, 413 F.2d 536, 538 (8th Cir. 1969),
that the “order to show cause is merely a method of serving
notice of the alleged violation of an order. … The alleged
contemnor is at all times clothed with the presumption of
innocence and the Government has the continuing burden of
proving his guilt.”
     In response to the government’s motion the district judge
held a hearing to determine the defendant’s guilt. An Assis-
tant U.S. Attorney appeared at the hearing but said only that
the government had “no recommendation as to an appropri-
ate disposition” of the case. At the request of the defendant’s
lawyer, the judge allowed the defendant to testify to her rea-
sons for not complying with the summons. She testified that
she had received the summons but had then forgotten about
it. She explained that when she received it she’d been almost
five months pregnant with her first child, that it was a com-
plicated pregnancy closely monitored by medical personnel,
and that she had been placed on modified bed rest to reduce
the risk of a miscarriage. And at the same time she was tak-
ing intermittent leave under the Family and Medical Leave
Act from her work as a bill collector for a bank in order to
care for her mother, who was undergoing a total knee re-
placement and also suffering from a disease called angi-
oedema, a swelling of the skin that can cause stomach
cramps and breathing difficulty. Although mother and
No. 14-3730                                                 3


daughter live in Rockford, the mother was being treated for
her knee problem and her angioedema at Northwestern
Hospital in Chicago, and the defendant drove her to and
from the hospital and sat in on all her doctors’ appoint-
ments. The mother was sometimes hospitalized during this
period and on those occasions the defendant would stay
with her in the hospital. The defendant testified that she is
not opposed to serving on a jury—she had appeared for jury
duty twice in the state courts. The government’s lawyer de-
clined to cross-examine her.
    At the conclusion of her testimony the judge declared her
guilty of willful contempt beyond a reasonable doubt. He
did not explain the basis of his conclusion beyond saying “I
think that she in essence just didn’t want to be bothered with
this summons.” He sentenced her to pay a fine of $250. That
is not a heavy punishment by federal criminal justice stand-
ards, but it placed a federal criminal conviction on her rec-
ord—not a good thing for a bank employee to have.
    Obviously if she merely forgot the summons amidst the
distractions of a complicated pregnancy and a seriously ill
mother whom she was ferrying from Rockford to Chicago
and back—89 miles each way—she was not guilty of willful
disobedience of the summons. See United States v. Mottweiler,
82 F.3d 769, 771–72 (7th Cir. 1996). Nor did the government
argue that she was lying in saying she had forgotten the
summons. Indeed no evidence of willfulness was presented
by anyone. The judge had asked the government to initiate
criminal contempt proceedings and it had done so, but all it
had said (in the motion for a rule to show cause that was its
sole participation in the case) was that she hadn’t complied
with the jury summons, which of course was conceded.
4                                                 No. 14-3730


    Although the judge said that he had found her guilty be-
yond a reasonable doubt, actually he’d shifted the burden of
proof to her—she had to convince him that she had not will-
fully disobeyed the summons. She was the only witness. She
testified in detail and without contradiction or internal in-
consistency that she had “had a lot of things that were hap-
pening all at one time”—that she “was trying to help my sick
mother and out on family medical leave. I was pregnant. I
experienced complications with my first child,” and so she
had forgotten the summons. The judge, consistent with his
shifting the burden of proof to her, said (to whom? Oddly
not to her): “I’m not persuaded by her statement that she was
busy and forgot” (emphasis added). Yet obviously she was
very busy and harassed during the critical period, and he
could not lawfully place the burden of proving innocence on
her in a criminal proceeding.
    Had either the government’s lawyer or the judge ques-
tioned the defendant, evidence of guilt might conceivably
have been elicited. One can even imagine evidence present-
ed by jury officials regarding willful disobedience of jury
summons. There was nothing like that. The only reason the
judge gave for finding the defendant guilty beyond a rea-
sonable doubt was that he thought “that she in essence just
didn’t want to be bothered with this summons.” He did say
at one point that “Karenza is an intelligent person. She
works at a bank. She’s articulate.” But he did not say that no
intelligent person who works at a bank and is articulate
could forget a jury summons no matter what pressures she
was under—which would amount to saying that no intelli-
gent and articulate person employed by a bank has ever for-
gotten a jury summons
No. 14-3730                                                  5


    The summons had stated that the recipient could ask for
a “hardship excuse” from having to appear on the date spec-
ified in the summons. Since the defendant had adequate
grounds to be excused, had she not forgotten the summons
she would have been likely (being intelligent) to invoke the
excuse rather than risk getting into trouble (she’s a bank
employee and therefore needs to have a clean record).
    The point is not that she must have forgotten the sum-
mons—who knows? It is that proof beyond a reasonable
doubt that she did not forget it is woefully lacking. The only
solid evidence in the case is that she didn’t appear for jury
duty on July 18. That cannot be proof of willfulness—
certainly not in the face of the uncontradicted evidence of
the pressures she was under, her previous compliance with
jury summonses, the availability of a hardship excuse, and
the de facto refusal of the government to prosecute her. All
the government did was carry out the judge’s order to initi-
ate a criminal proceeding—it made no effort to demonstrate
that she was guilty of a crime.
    We can imagine a parallel case in which, in the course of
a criminal jury trial in which the defendant is testifying, the
judge thinks he’s just heard the defendant tell a lie on the
stand. Despite this belief he would be mistaken to send the
jury from the courtroom, find the defendant guilty of crimi-
nal contempt, and sentence him on the spot, with the sen-
tence to be added to the sentence for the crime for which the
defendant is being tried, if he’s convicted, or to be served
separately if he’s acquitted. In both our case and the hypo-
thetical case the judge would have only a vague impression
that the defendant might be lying, rather than evidence
amounting to proof beyond a reasonable doubt.
6                                                 No. 14-3730


    Lying on the stand (to continue with our hypothetical
case) is a basis for conviction of criminal contempt only if it
amounts to a more serious obstruction of justice than ordi-
nary perjury does; if not, the proper charge is perjury and
the defendant is entitled to trial by jury. In re Michael, 326
U.S. 224 (1945). A trial would generate evidence. The Su-
preme Court’s refusal in the Michael case to allow a perjury
trial to be shortcutted by a summary criminal contempt pro-
ceeding reflects a natural discomfort with resting a criminal
conviction on a judge’s determination of the credibility of a
single witness, the defendant, with no other evidence being
presented in support of or opposition to so thinly based a
determination.
    The government, although as we said it did not prosecute
the defendant in a meaningful sense, in our court defends
the conviction on the ground that the judge, since he “was
able to listen to not only the defendant’s words, but also to
how she spoke and was able to observe her demeanor while
she testified … [was] in the best position to assess her credi-
bility.” But the judge did not mention demeanor, unless his
remark that the defendant is intelligent and articulate should
be taken as a comment on her demeanor. Anyway, demean-
or evidence, such as tone of voice, or gestures or posture, can
be an unreliable clue to truthfulness or untruthfulness, and
thus distract a trier of fact from the cognitive content of a
witness’s testimony. See, e.g., Scott Rempell, “Gauging Cred-
ibility in Immigration Proceedings: Immaterial Inconsisten-
cies, Demeanor, and the Rule of Reason,” 25 Georgetown Im-
migration Law Journal 377 (2011); Max Minzner, “Detecting
Lies Using Demeanor, Bias, and Context,” 29 Cardozo Law
Review 2557, 2566 (2008); Jeremy A. Blumenthal, “A Wipe of
the Hands, A Lick of the Lips: The Validity of Demeanor Ev-
No. 14-3730                                                   7


idence in Assessing Witness Credibility,” 72 Nebraska Law
Review 1157 (1993); Olin Guy Wellborn III, “Demeanor,” 76
Cornell Law Review 1075 (1991).
    There’s still more that was wrong with the district court
proceeding. Neither the government in its motion to show
cause or at the hearing before the judge, nor the defendant or
her lawyer, nor the judge himself, mentioned a statutory ba-
sis for adjudging the defendant guilty of willful and there-
fore criminal contempt. The government did state in the fine
print of the “Designation Sheet” filed with the court that the
prosecution was pursuant to 18 U.S.C. § 401 and 28 U.S.C. §
1866, but the designation sheet was not mailed to the de-
fendant or the defendant’s lawyer, nor referred to by the
judge, who cited no statute during the hearing at which he
convicted and sentenced the defendant.
    18 U.S.C. § 401(3) punishes criminal contempt but re-
quires proof of willfulness, which is absent in this case. See
United States v. Mottweiler, supra, 82 F.3d at 771. The written
judgment order (usually filled out by a clerk rather than the
judge) bases the defendant’s conviction on 28 U.S.C. §
1866(g), which provides that “any person who fails to show
good cause for noncompliance with a summons [for jury du-
ty] may be fined not more than $1,000, imprisoned not more
than three days, ordered to perform community service, or
any combination thereof.” The statute does not mention will-
fulness and there is no appellate authority on whether a $250
fine would be considered a civil or a criminal penalty for a
violation of that statute. Conceivably the judge thought he
was basing his sentence not on a statute but on inherent ju-
dicial authority to punish for contempt, see, e.g., Young v.
United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798–99
8                                                  No. 14-3730


(1987), but he gave no hint of that. The essential point is that
the judge thought he was sentencing the defendant for crim-
inal conduct (the judgment order is captioned “Judgment in
a Criminal Case”), and there was a failure of proof of such
conduct beyond a reasonable doubt.
   A final point: during the brief hearing the judge seven
times addressed the defendant by her first name. Calling a
witness, let alone a testifying criminal defendant, by his or
her first name is not proper conduct for a judge.
   This litigation has been mishandled by both the district
court and the Justice Department, which should not be de-
fending the judgment. The judgment is reversed and the
case remanded with instructions to enter a judgment of ac-
quittal. The $250 fine that the defendant has paid must be
refunded to her forthwith.
