In Re Sawyer

IN RE SAWYER. Argued May 19-20,

No. 326. 1959. Decided June 1959. argued John T. McTernan the cause and filed a brief for petitioner. Bar Barlow, attorney for the Association

A. William him on respondent. With Hawaii, argued the cause Omori, Special Deputy Attorney Gen- the brief was Moño Territory of Hawaii. eral of the Lawyers A. filed a brief for National Forer the

Joseph curiae, urging reversal. Guild, as amicus judgment the of announced Justice Brennan Mr. opinion, and which The Chief Court, the delivered Douglas Black, and Mr. Justice, Mr. Justice Justice join. 892, 358 S. certiorari,

This case is on writ U. here law suspension practice from the petitioner’s to review of the Terri- year, by one Supreme for ordered by appeal 41 affirmed on tory Hawaii, Haw. 260 2d Circuit, F. 189.1 Appeals the Court of Ninth Territorial Bar Petitioner has been a member of the many in late beginning Hawaii since 1941. For months 1952 District Court participated, she United States trial of Honolulu, at as one of defense counsel an indictment a defendants for con- against number of under The spiracy Act, § the Smith 18 S. C. 2385. U. a Judge Wiig Jon trial was before Federal District jury. petitioner Both had disciplinary charges against charge a to do with the Smith Act trial. One related to began. she about six after speech made weeks the trial Hawaii, The made on the Island of at Oahu, 182 village Honolulu, some miles from Honokaa, The Sunday morning. charge other related to inter- after jurors she with one the trial views had concluded.

1 was heard en banc by appeal The 4-3 The affirmance was vote. by by judges but of the retirement of one was decided because judge death of another. preferred charges2 Bar Association Hawaii Supreme referred the Territorial Court to were investiga- Legal Association’s Ethics Committee for prosecutor represented

tion. The who Government at the Smith Act trial investigation conducted the presented the evidence before the Committee. The Com- mittee submitted the findings record and its Terri- Supreme torial Court.- -Because the suspension seems to us depend on it, pp. infra, see 637-638, we deal first with the charge relating to the speech. The gist óf the Com- mitteé’s findings was that the petitioner’s speech reflected adversely -upon Judge Wiig’s impartiality and fairness in 2At the conclusion trial, of the Smith Judge Wiig Act District requested the investigate local Bar Association to the conduct of petitioner. The Bar Attorney Association took no action as the ,the Territory of General investigation. conducted an As the Rules Supreme of the Territory stood, only of the Attorney then the person aggrieved or General charges could file unprofessional of. against attorney. conduct investigating After matter, the the Attorney complaint. General did not file a A Committee of the proceeded study question Association then bringing to the Bar charges against petitioner, and, in the words of the then President of the Association: subsequently “The committee report made a the to Executive Association, ruling Board of the complaint against that a be filed Bouslog. However,

Mrs. under the rules is, then in.existencé —that rules, Supreme the Court, the the Bar Association could not be complainant. Consequently-, again the matter was referred to the Legal study Committee on to Ethics to -amendments the Rules of Supreme Court, the and the Legal of the Chairman Committee on up Ethics took the matter with the Chief recall, Justice. And as I the to Rule complaints amendment 19—that is the rule on unprofessional conduct —I think April was amended in of 1954. “Thereafter, the Legal chairman of the Gommittee on Ethics sub- proposed mitted a Complaint. draft of the The Executive Board draft, changes, recommended then, finally, studied certain and complaint the form-of the was, filed, agreed as upon, and [sic] I, president Association, of the Bar was authorized to file that complaint in the name of the Bar Association.”

625 the conduct of the Act trial impugned judi- Smith his integrity. cial The Committee concluded that petitioner “in imputing to the Judge unfairness the conduct of trial, impugning integrity of the local Federal courts and other comments made at Honokaa, was guilty of violation of Canons 1 of the Canons of Professional Ethics of the Américan Bar Association and Duty Canon 1 is Lawyer entitled “The to the Courts.” It reads: the.duty lawyer

“It of the maintain towards the Courts a respectful attitude, temporary not for the sake of the incumbent judicial office, supreme but for the maintenance of its im- of. portance. Judges, being wholly free to themselves, defend are peculiarly support against entitled to unjust receive Bar criticism proper ground and clamor. Whenever there is for serious complaint judicial officer, right of a duty lawyer it is the grievances proper submit his to the cases, authorities. In such otherwise, charges but not encouraged such should be person .and the making protected.” them should be 22 is

Canon entitled “Candor and Fairness.” It reads: lawyer “The conduct of the before the Court and with other lawyers should be characterized candor and fairness.

“It lawyer knowingly misquote is riot candid or fair for the paper, testimony language the contents of a witness, of a or argument opposing language counsel, or the of a decision or textbook; knowledge invalidity, authority or with of its to cite as overruled, a decision that has been repealed; or a statute that has been' argument or proved, to assert as a fact which has not been jurisdictions or in those opening closing where a side has the arguments opponent by concealing withholding to mislead his or positions opening argument upon his his side then intends rely. unprofessional candidly

“It is and dishonorable to other deal than taking witnesses, drawing with the facts in of statements documents, presentation and other affidavits and in the of causes. lawyer “A should not offer evidence which he knows the Court reject, get jury by argument should in order to" the' same before the admissibility, Judge arguments for its nor should he address to the upon any point properly calling by for determination him. Neither he argument, should introduce into an addressed to the disciplined for the same.” The Territorial

should . engaged partici- held that “. . . she and Supreme Court upon attack of pated in willful oral administration justice and said States District by United for the District of Hawaii and direct statement impugned .implication integrity judge presiding therein . . . thus tended to also create disrespect justice' judicial for the courts of officers generally, . . . She has thus committed what this court 422-423, gross considers misconduct.” 41 Haw., at may We think that our review be limited to the narrow question whether the facts adduced are capable supr porting findings petitioner’s that the speech impugned Judge Wiig’s impartiality and fairness in conducting the Smith Act trial upon and. thus reflected his integrity dispensation justice in that case. We with the deal findings, Court’s not with “misconduct” in the abstract. Although the opinions Appeals Court of and the argument before us have tended in varying degrees to petitioner’s treat the suspension as discipline imposed for obstructing or attempting to obstruct the administration justice, in a way to or embarrass influence the tribunal trying the case, such charge neither the nor the finding of professional upon misconduct suspension which the based. Since no obstruction attempt, or at obstruction of the trial was charged, and since it is clear to us that finding upon which the suspension rests is not sup- portable by the evidence adduced, we have no occasion court, remarks'or statements intended to jury influence the or bystanders.

“These practices and all kindred unprofessional are unworthy of an charged, officer the law lawyer, as is the duty with the aiding justice.” in the administration of perceive any specification We do not by the respect Committee of the thought in which Canon 22 was by petitioner’s have been violated speech, and such a violation does not occur to us.

627 314 Bridges California, applicability v. consider Florida, Craig 331; 328 U. or v. S. 252; Pennekamp U. S. extensively have been S. Harney, v. U. any do not reach or intimate in the briefs. We discussed (cid:127) issues presented. the constitutional on conclusion among them labor unions, clients included Petitioner’s and Warehousemen’s Longshoremen’s the International in Act the Smith the defendants Union. Some union and their defense and members of that officers were at meeting union. The by the supported being was attended the ILWU and was sponsored by Honokaa spoke The petitioner members. part by its large recording was transcript no or extemporaneously and is a Precisely what she did speech. her made of Supreme dispute. the Territorial matter of Neither witnesses, but saw the nor the Court of Appeals .Court record, matters courts, reading resolved both fashion least evidentiary conflict favorable may our we petitioner. purposes here, For review prin- petitioner’s speech The of the do the same. version 2d, 260 F. at upon by Appeals, relied the Court cipally by newspaper notes made 197-198, is- derived from Matsuoka, meeting who attended the and heard reporter, said. These Matsuoka’s petitioner, what were not originals expanded notes —the were an original lost —but by him prepared version at the direction of his news- after paper superiors interest aroused of it the newspaper.4 Matsuoka’s account We portion article, Tribune-Herald, in the Hilo that deals petitioner’s speech with is as follows: Sawyer, speaking, hour, spoke “Mrs. for a half of ‘some rather things go shocking horrible on at the trial.’ trial, thing case,’ “There’s ‘no such as a fair in a Smith act she charged. scrapped govern- rules of ‘All evidence have to or the make a case.’ ment can’t opinion, Appendix this full as summary our basis of illumine the

tioner said. The will petitioner’s speech finding that the that conclusion upon Judge Wiig impugned integrity or reflected presiding impartiality at Smith his and fairness finding support. below does Act The fact trial is without duty examining the not. evidence remove this Court’s a basis for the char to see it furnishes rational whether by put v. lower courts. See Fiske acterization Speculation Kansas, 274 take over U. S. 380. . cannot proofs sup fail. that where the port We conclude there no any peti than for further factual inference voicing strong tioner was criticism Smith Act eases and proving them, Government’s manner of and that happenings her references to the at the Honolulu trial any were this, and. not a reflection wise illustrative upon Judge Wiig personally or his conduct of the trial. really

Petitioner said that the Honolulu trial get effort to at the ILWU. She wanted to tell about some shocking things go “rather and horrible on at the being trial.” -The defendants, said, she were for tried reading they books written before Hall, were born. Jack one of the defendants, said, she on he because spoke had read the Communist Manifesto. She prosecutions, nature of ciiiminaL conspiracy as she saw ' n ' ' -1-* up make they along,! rules she told her .“They'!just( p listeners. we stop'the “‘Unless Smith act trial in its tracks'here’ there will be a knowing ‘new crime’ that of what’s in books and will to lead ages thought ‘dark control,’ asserted the chic and attractive lawyer. woman reading by “She prosecution referred ‘supposed of books to

to bag’ have been in Henry a duffel witness; owned Johnson. urged She her thing listeners tell others ‘what vicious the Smith Act is.’ "Persons years ago’ are ‘tried for books by others, written n she said.” charged that when Government did not them, lumps together evidence “it number enough have something.” means “Conspiracy to do says they agreed you agreeing something a lot of to do charge people generally FBI, say- attacked the have never done.” She investigating people’s much time ing they spent too further on the remoteness of the minds, and next dwelt youth and the extreme of some of evidence the case defendants, directly at the time which the evidence mémory good, yet related. said one has a She “no they testimony. Why? they use this kind of Because anything necessary do everything will to convict.” propaganda years Government carried on for 10 before jurors box, charged, “enough entered the she made it person to is a communist to cook his goose.” a She that some of the witnesses had charged given prior testimony inconsistent but went Government “say and had them in things order to convict.” ahead testify “Witnesses what Government tells them to.” The Government, claimed, she read in days evidence two for. Communist because one of the defendants had once books seen them in a duffel bag. people Unless informed.on such FBI defendants, try would to make them lose jobs. their thing “There’s no as a fair trial such Smith Act All case. rules of evidence scrapped have to be or the Government can’t make a case.” She related how in anothér (in case the territorial courts) she was not put allowed to evidence of a hearsay nature to exon- erate a criminal defendant she was representing,5 but in 5 Application The Majors, case was Palakiko and 167, 39 Haw. Harper, aff’d sub nom. Palakiko v. 209 F. 2d 75. The case was a corpus application, petitioner habeas sought in which put police evidence the statement of woman that a officer had said petitioner’s that he had beaten a confession out of client. The Supreme lengthy evidentiary -Territorial hearing Court held a many petition, matters, which covered other and at it excluded bench on a federal sitting judge “a federal case the present ago, years testify about Crouch permits witness] [a to tell they permit . here witness then . . said what was old.” years five a defendant said when what was in the case. fair trial “There’s no declared, She then gave She they go along.” rules as up make just They before Act trial York Smith the New example States, S.U. United Medina, see Dennis v. Judge a case make can’t “The Government where she claimed the rules widened they did so just they if it tells what every- including ago, years did people and tell-what other declared, “Unless kitchen sink.” She thing including the be a here there will in its tracks stop we the Smith trial knowing what charged be with People new crime. will said conclu- Petitioner included books—ideas.” and free- to read things sion that if went on the freedom be subverted. She thought dom and action would explain a vicious urged go her out and what auditors thing the Smith Act was. Legal specific utterances in the fur- found as Supreme

Ethics Committee and the impugned nishing findings petitioner the basis for the Judge Wiig’s integrity (which were the references we shocking” quoted above) have in full to “horrible and things trial; at a fair trial;- impossibility necessity, if the proved, Government’s case were to scrapping evidence; the rules of and the creation of new crimes stopped unless the were at once. examine We points particular, though these of course must we do speech. so the context of the whole In so doing we accept obviously as correct the ruling of the courts below petitioner’s that generalized remarks were not a mere dis- question. opinion evidence The court’s does not discuss the point, but is Appeals’ opinion mentioned in the Court of 2d, affirmance. 209 F. at 102-103. prosecutions particular

course on Smith Act but included to the case on in going references Honolulu.

I. proposition lawyers We start with the that are free Many lawyers to criticize the state of the law. say that the rules of relative to the evidence admission of state- by alleged ments those to be co-conspirators are overbroad or otherwise unfair unwise;6 dangers there are of a defendants, against judges sort which trial cannot protect them, in the persons trial of numerous jointly conspiracy;7 and that a apt Smith Act trial is become

6 One of the point classic statements of this of view is Mr. Justice concurring opinion Jackson’s States, in Krulewitch v. United proof charge U. S. 453: “But the sprawling order of of so conspiracy] judge practical difficult for a to control. As a [as matter, hodgepodge accused often- is confronted with a of acts by may and statements others he which never have authorized or or about, help persuade intended even known but jury conspiracy words, existence itself. In other a con spiracy proved by often is only upon evidence that is admissible assumption conspiracy assumption existed. The naive prejudicial jury effects can be overcome instructions to the . . . practicing lawyers unmitigated all know to be fiction.” unavailing protest against growing “The of courts habit to conspiracy prosecuting indict for in lieu of for the substantive offense itself, suggests thereto, practice or addition that loose as to this offense constitutes a serious threat to fairness in our administration justice. . . . interchangeable conspiracy

“The use of well doctrine in civil as penal proceedings opens danger, it to the absent in the case (cid:127) many crimes, having only that a court mind civil sanctions approve practices imported will lax which later are into criminal proceedings. ... proof charge sprawling order of of so is difficult for a-

“[T]he judge to control. ... many practical defending against charge

“There are difficulties in conspiracy I which will not enumerate. . .-. survey observation, which accords with our will “[A conducted] . hardly highest exemplifi- convince one that a trial of this kind is the 632 are free to disagree. But Others all

a trial of ideas.8 would and no one matters, on these views their express improper constituted of criticism this sort rules and who such enforced judges the who attack on exist- though the so, This is even at the trials. presided in a sense be said might of law rules questionable ence cannot simply criticism Such unfair trials.9 produce to the motivation or on the an attack equated with surely judges. the And competence of or the integrity lay made a audi- as well be to may criticism permissible the law is modified oftentimes professional; as to a ence Bentham’s strictures on criticism;10 through popular come to and Dickens’ novels state of the common law may say, lawyer criticize And needless to mind.11 Government, agencies of law-enforcement wrongdoing suggesting even to the extent of prosecution, judi- impugning that token part, on their without prosecution Simply charge, example, for ciary. testimony in a case is knowing perjured use of with concurring working judicial process.” Jackson, J., cation of the of the States, 453, in Krulewitch v. United 440, 445-446, 451-452, 336 U. S. 454. 8 expressed This idea has been in this Court also. the dissent See Douglas States, Dennis v. ing of Mr. Justice United opinion 341 of Mr. Justice Black opinion 494, 581, 583, separate S. and the U. States, in Yates v. United 298, 354 U. S. 343-344. practice [conspiracy] as to this offense constitutes 9“[L]oose justice.” serious in' our administration Jack threat fairness States, concurring 440, Krulewitch v. United son, J., 336 S. U. 446. 10“England just completed century struggle pro has reform, energy is to the and determination of the cedural public, leadership bar, not to the the credit for Sunderland, English Struggle ei pr English practice is. due.” (1926). Reform, L. Rev. for Procedural 39 Harv. Bentham was of Lincoln’s Inn Both at the' bar. were Temple. Dickens Middle slightest any complicity by judge imply charge such To the Government makes actions. the conspiracy prosecu-

overmuch use of form of criminal and this to bolster is not to tion, cases, suggest any weak unseemly by the judiciary complicity practice.12

In large if part, entirely, peti- not Matsuoka’s notes of tioner’s do not her as doing reveal more thstn this. She dwelt .extensively on the nature Act trials Smith of conspiracy prosecutions. on The trial, Honolulu to be sure, setting was the for her remarks, they but do hot indicate more than that she referred to it as a typical, present example of thought the evils to be attendant such trials. specific statements censurable found (without which the bringing charge would have been inconceivable) are not in the least inconsistent with this, though even they must be taken to relate to the in progress. specific These statements are hardly damning by themselves, clearly call for light examination context may give them; so examined, they do not furnish basis any finding professional, for a of misconduct. She said that there were “horrible” and “shocking” things going on at the trial, remark, but this introductory to the speech, course was in the context of what she further said conspiracy about prosecutions, trials, Smith Act and the prosecution’s conduct. Peti- tioner’s statement that a fair impossible trial was in con- text obviously related to the state of law and to the con- prosecution duct of the and the not FBI, anything to Judge Wiig personally doing failing or to do. account, It occurred immediately after an of the FBI’s alleged pressuring of witnesses. The same clearly seems necessity case remark about the of scrapping with the. prosecutors is for rather than courts to determine when

12“[I]t scatter-gun bring to use a down the defendant . . . Jackson, J., States, concurring in Krulewitch v. United 336 U. S. 452. if the trial The statement of evidence.13 the rules thought or conviction, new crimes —those on to went thought be hardly could created be ideas —would no matter how di- integrity judge’s the. trial reflect on any of this How it be considered. context from vorced might he except insofar Wiig, Judge reflected on legal in a judge he was stature because to lose thought To is not shown. imperfections, full of said to be system impugn is not ass, is a a idiot” law say that “the say that it. 'To must administer who of those character the character impiign is not to corrupt are prosecutors find no or be able to it, might be unaware judges who them, Judge Wiig restraining under the law method there was speech, name mentioned phrased that was complaints virtually petitioner’s none of aught that doing. For judge” “the was in of what terms have Judge Wiig might petitioner’s speech, appears from matter, with sympathy, personal as a totally out of been a offenses on Act, practice trying of criminal the Smith conspiracy of basis, and the rules evidence conspiracy by apply felt to the law as laid trials, but bound down higher courts.15

13 States, Jackson, J., concurring in Krulewitch v. United Again cf. application “The hazard from loose of rules 336 U. S. 453-454: aggravated where the institutes mass of is Government evidence trials.” 14 States, 298, 318, this Court said: In Yates v. United 354 U. S. question pro with the whether the Smith Act “We are thus faced advocacy teaching as and of forcible overthrow an abstract hibits any instigate end, to to-that divorced from effort action principle, teaching long advocacy engaged with evil intent. such or so as it does not.” We hold that petitioner’s were all

The of Smith 'Act convictions clients Yates, authority Appeals of in the Court of on (cid:127)reversed Fujimoto States, v. United judgment them. 251 ordered entered for . 2dF. 342 questioned judges past have in con Lower federal court practice. the statement of the 1925 Con- spiracy indictment See be found so far as passages go if some can Even taking view; Judge was an erroneous imply Wiig to that comparison made between the perhaps the law— hearsay Territorial where case in the Courts statement the Smith admission evidence excluded is made of nature, be of this much it might Act case Committee and courts madé though the below here nothing it—we think there was still nothing of- If findings. Wiig was said warranting Judge his is no courts wrong law, matter; appellate it be imputes it say judges daily, and law reviews apt are reports Dissenting opinions no our disgrace. like stuff indeed. speech, look tame petitioner’s make or venal Judge Wiig corrupt Petitioner did -public attribution or stupid incompetent. or professional. is no cause for judiciary to the honest error Ades, Supp. 467, In re F. country. this See discipline would some the audience may 481. It be said that from prosecution improper infer collusion with the. lay per- the defense. Some prejudicing of error charge imagine error without legal not be able to- may sons our standards collusion, but it will not do -toset venality or by indulge specu-/ can in no involved their reactions. We imaginations of die petitioner’s guüt lation as to reason of others. may for an proper attorney

But it is said while judges is unfair are in error say the law Qr general say it is counsel to matter, wrong for of record so The. during pending case. verbalization is that is impermissible by day by night. to litigate castigate 2d, See F. at This seems 260 202. central to the Bar line argument, appears as it been to Association’s to have Judges, quoted Report of Senior Circuit ference Annual States Attorney General, 1925, 5-6; Hand, in United pp. J., L. v. Falcone, 109 F. 2d 581. is below,16 and the dissent here

reasoning of the court totally ignore us it seems to by it, but to much informed findings. findings made and the were charges impugned integrity Judge Wiig petitioner justice his improper attack on administration of made any A not lawyer acquire in the Honolulu trial. does things by being presently engaged to not license do these They equally currently are serious he in a case. whether engaged litigation judge before the or not. We can ground whereby pendency litigation conceive no might thought attorney’s to make an out-of-court censurable, they might remarks more other than that tend justice. to obstruct administration Remarks made during might the course of a trial tend to such obstruction where remarks made not. But this afterwards would dis- foreign tinction is to this case, charges because the findings way no turn on an allegation of obstruction of justice, attempt or of an to justice, pending obstruct charges To the found, made and it is irrelevant case. whether the Smith Act case was still pending. Judge Wiig remained equally protected from statements im- pugning him, petitioner equally remained free to make critical statements that did not cross that line. We find that hers cannot be said to have done so. Accord- ingly, suspension order, based on the charge relating speech, cannot stand.

II. Petitioner was also charged by the Committee, and found the Supreme Court, to have misconducted her- self by’interviewing juror shortly after the completion example, For petitioner argued Appeals the Court of professor that a law at Yale had made pungent criticisms in more terms than hers. Said the court: uphold “We would Professor right Rodell’s from vantage point his Yale just about what say. he wants speaks But when he he is simultaneously harassing very trying court in which he is an unfinished case.” 2d, F. at 200.

637 mentally become juror had Act trial. The of the Smith. shortly fashion, very after in obvious unsettled, his as a of apparently verdict result rendition of-the and point peti- that It was at this jury. on participation sister, his several requested by tioner; having been first his members of him, spoke with times interviewed it been recognized that had family. Supreme The inter- Territory in to practice attorneys for common of. jurors after the rendition their verdicts rogate their profes- action it found her discharges. Nevertheless, as to of the witnesses sional misconduct. The versions varied consid- exactly transpired what at interviews no of on findings court made fact erably, but it grasp is to the basis matter, and it difficult juror out for censure singled petitioner’s interviews inter- practice of such against pattern a common Territory.17 clearly in some views While there the. a become delicacy approaching juror involved who has a mentally unsettled, juror incompetent evidence might at the time the rendition of the verdict be admis- jury’s sible to impeach verdict where evidence inter- reasoning processes mental is not. While transcript we court “It from the appears said: -which pursuant pretrial herein, her first have examined order juror] made.by the.respondent visit to said David Fuller [the upon request by appears It it licensee his also has sister.. uncommon, practice, if not been fact common heretofore well, Territory ¡for attorneys within the of Hawaii as as others them, interrogate jurors, after rendition verdict as to what may reaching have been decisive verdict.

“However, upon request if she of his even relied sister when upon Fuller, she first visited David arid belief that was common interrogate practice, locally, jurors verdict, such reliance after acceptable repeated thereon is not excuse her to and visits interrogation studied under the set Fuller circumstances and as affidavit, incorporated particulars. forth the bill .'. .her Haw., at 423-424. it is circumstances, unusual views undertaken under were furnish more circumstances difficult to whether the present average juror in the justification or less than is Court’s Supreme read the interview —which we do not the future.18 holding censurable, except as to opinion as charged petitioner The had with Legal Ethics Committee juror inter- of affidavit as to the concealment facts her support of her motion for a Judge Wiig view filed with the but we do not find defendants, new trial for Smith Act opinion agreeing in the with anything Supreme Court’s these charges. need not further explore

But we what the basis was for the Supreme Territorial this finding charge. Court’s ,As to the it, suspension court said that the order it ren- charge dered on to the relating speech the suffice.19 would The Appeals opinion Court of if the charge of as to the were insupportable, present posture the of the suspension case the F. stand, 2d, 202, could 260 at agree. we Supreme We cannot read the Court’s opinion as imposing any penalty solely by reason of the juror. interview the Accordingly, with do not we believe appropriate would be in the posture of the case for us finally adjudicate validity of the finding of misconduct reason of the interviews.

III. The Court of Appeals expressed doubt as to its jurisdiction to hear appeal from the Territorial Supreme Court, and respondent urges here that that court 18 coxiít-gave The warning future of the cionduct Bar that interrogation jurors of jury to occurrences in the room and as why to the jury reasons reached its verdict would at peril interrogator. Haw., at 425. 19“However, matter, in the instant this court let will its herein- expressed before disciplinary suspending respondent said order — practice licensee from the year law territorial for courts one requiring pay her suffice, although deeming gross also costs— repeated her misconduct said interrogations interviews with and Ibid. David Fuller.” jurisdiction jurisdiction. without Since our to hear must stand fall the case on the merits or with that of the objections. Appeals, They Court of we examine are Appeals without merit. The Court of for the Ninth Cir- jurisdiction appeals from final judgments cuit has Supreme Territory of Hawaii, pursuant to 28 S. C. in “civil cases § XL where value controversy exceeds $5,000, exclusive of interest and costs.” order suspension would have the effect of removing petitioner from the practice of law for at least year, one and she filed an uncontroverted affidavit that her annual practice net income from the of law had been years, would continue in excess of foreseeably, $5,000.21 petitioner’s It insisted that right cannot be monetary reduced to terms, because it “priceless,” and so it in a is, manner of speaking; profes- but besides the aspects sional her status, of her continuance in a specific form of gainful employment is in issue, Bradley see v. Fisher, 13 335, 355, jurisdictional Wall. and hence the amount present.

Finally, we find no inhibition as scope to the of review we have given judgment of the Territorial Court. The Territorial Court is one created under sovereignty of the National Government, O’Donoghue United v. States, 289 S. 516, 535, U. and this Court (once hence

20 appeals “The courts of for the First and Ninth Circuits shall jurisdiction appeals have of from supreme all final decisions of the of Hawaii, courts Puerto Rico respectively involving in all cases Constitution, laws or treaties of the any United States authority or thereunder, exercised corpus in all habeas proceedings, and in all other civil cases where controversy the value in $5,000, exceeds exclusive interest and costs.” 28 U. S. C. 1293. § power any appeals “Where the court of to review a case depends, on the or controversy, amount value in such amount or value, satisfactorily if not upon otherwise record, disclosed may be by shown party ascertained the oath of to the case or by competent other evidence.” 28 U. S. C. 2108. § as it would satisfied) is not limited Act is

jurisdictional aof State. highest court of the reviewing judgment give must of-Appeals and the Courts this Court Of course principles developing freedom Territorial Courts See legislation. local interpreting law, local Board Co., 463; DeCastro v. S. Bonet v. Texas 308 U. hardly Commissioners, 454-458. But S.U. question clear that make it needs elaboration to sustain a insufficiency of the evidence to total a back- misconduct, against professional serious charge attorney rights of an the claimed constitutional drop of is not one which citizen, as another speak freely headings practice, of local can be subsumed under or customs law.

Reversed. Mr. Justice see concurring opinion of Black, [For post, p. 646.] concurring opinion of Stewart, Mr. Justice

[For p. result, post, see 646.] dissenting opinion of Frankfurter, [For Justice Mr. joined Clark, Justice Justice Harlan Mr. Mr. p. post, see Whittaker, 647.] Mr. Justice dissenting opinion post, of Mr. Justice see [For Clark, p. 669.] TO OPINION OF

APPENDIX BRENNAN. MR. JUSTICE REPORTER, MATSUOKA, RELA- OF THE THE EXPANDED NOTES petitioner’s . TO SPEECH. TIVE M. who said he wanted to Bento, “She followed Samuel gen- Tribune-Herald, pointing say good morning to paper’s reporter from Ftilo and the erally toward the

641 side correspondent sitting Honokaa who were paper’s Sawyer preceded began Jack Hall. She side. Mrs. W. and,ended a. m. speaking at a. m. 11:30 proceeded: “Notes on what she said in the order of how she The' a has been is trial of Jack Hall really get added six others. It’s to at the ILWU. she shocking

“Said wanted to tell about some rather horrible things go on at the trial. appointed years ago (3 years ago) by

“She was some or money a court to a man had no to hire his own defend who charged counsel. He pimping procuring. was with complaining witness the case was a who woman years territory had been business who claimed she had repented reformed and but this vicious man had again driven her back It into the business. turned out kept the hotel where he her had had 27 doors unlocked. Likened this to act. pukas the Smith power “Said men in trying put jail are men because of their thoughts, and books before he born. written

“One of the reasons Jack Hall is on trial is it is because said he once got book, the Communist Manifesto, writ- ten in 1898, before Jack Hall father’s gleam his eye. quoted

“She from haunting manifesto: is spectre communism, Europe; spectre explained she spectre ghost, means spectre said still seems to be haunting people today. conspiracy,

“She turned next noted there awas brothers, conspiracy trial in filipino 1937 of conspiracy to advocate violence and criminal sindicalism. explained conspiracy means agreement, government never has

6.42 case, it got it hasn’t conspiracy used when had when says together they a number enough lumps evidence government hot . agreed something., to do does . they agreed Conspiracy to. says advocated overthrow but charge agreeing means to do some- people lot thing you have never done. myth they’re supposed of fbi. agents

“touched on special, movies, publicity to be extra programs, radio tell but see they you how wonderful are. when hundreds n of tax cases go by they spend fraud and when most of their time investigating people’s minds it’s time to cut size, them had down to said she told this to a honolulu gathering, day? agents labor fbi should called -fed- cops, put eral has slogan: away your thoughts said here cops, cops push come the federal people around. crouch, witness, “paul why difficult to understand he’s he here in 1924; because he was once Hawaii, but guess so why. that’s he testified what he did russia in 1927. he told what by generals he was told etc. usu- ally you testify you cannot on what people told when examined, there is no chance for those to be cross aileen then, fujimoto four years old what has crouch’s galloping plains any over of russia got bearing on the. her. jack government hall was 13. goes but on with testimony for two weeks on what crouch did between defendants, 1927 and 1941 without mentioning ever “he plots told of the armed forces and . . . of/infiltration it used to be the idea .that a man is responsible.for what he did and said—not what someone else single did. anot age one of the defendants was of at the time he’s talking about, jury going pay attention to what prosecution but it’s the old smear. The says, Crouch and that and we says (prosecution) say crouch did this party they are communist members so the defendants same. must have done the -been government going

“but has on for 10 propaganda jurors years jury before the into the box.' went person “it’s is a communist to his enough cook goose, government says agreement there passed in 1940. then violate the smith act agreed it it was passed, the defendants to violate before in 1941 meeting he was a communist crouch said at there, was the first time he’d people saw five or six it them, he he seen but was satisfied when came to honolulu years Koji Ariyoshi. Urged latér one was she years ago. what did 12 try they audience’ to recall said details, god memory no has a she can’t recall knows one testimony. good, yet they use this kind everything, “why? they anything will do because convict. necessary to they from what differently witnesses testified

“some de- government knows this but testified previously, say things him order ahead and have liberately goes convict, testimony, izuka in reinecke mentioned he saying izuka didn’t know something about said got until he government overthrow of party advocated out of party. just government tells them to. testify what

“witnesses govern- books like overthrow they portions of read says government the rest which czarist ment leave out russia. showing dealt with

“johnson testimony, said he came back san fran- from cisco with communist books and literature a duffle bag. he said when he got to he Honolulu told Jack Hall the books, names of some of the then government days're^ds two from books supposed to have been in the said, bag. duffel they’re dealing jack with what hall johnson cross examination said he did not tell the names of just the books but jack showed hall the duffel bag. jack so hall the smith violated act because he saw bag duffel with some books on overthrowing gov- . ernment silly, why it. it’s does government use your money put people jail and mine to for thoughts “the government has carried on a barrage propaganda for many years ‘expects people in jury to have hysteria just hearing about is enough jail, communist to said has a friend who worked for sears roebuck and has wife, family of three children he made a terrible time, mistake one he lived in the same house hall, jack the fbi him testify, wanted to he i said feel known, jack hall is one of the finest i people have ap- this, parently the fbi didn’t like so they suggested to sears and roebuck to fire him because he coop- wouldn’t erate government. with the

“he fired so they went to the Los Angeles and wasn’t Chicago offices of sears and roebuck and convinced them fired, he had to-be he was fired because he refused informer, to be pigeon a stool government gets away with it by making people fear if they don’t do as it they’ll wants be branded red and lose jobs. their case, , “there’s no thing such as a fair trial in a smith act all rules of evidence have scrapped be or govern- ment can’t make a case. palakiko— corpus move her habeas

“referred to majors case. heard vernon report she her with came to

“said woman them, she of one of out he bet a confession say stevens let the evidence refused to court supreme testified but had no not here and vernon stevens was in because this, chanee,to situation federal with the same deny testify crouch permits on a federal bench judge sitting then, previous ago. what said years about 27 they yet here and death of one. the life case was said when defendant tell what was a witness to permit old. years was five case, just up make they fair

“there’s no trial act case was they go along, the first smith the rules as leaders, attorneys contended york top the new they from right say what did have the they should the defend- permitted them to what 1924. medina government did from 1934 on. but ants themselves they so just they case if it tells what did can’t make a years tell did people the rules and what other widened sink. including the kitchen ago, including everything its there stop the smith tracks here “unless we crime, knowing charged be with people a new will will books, is included in ideas. what said los trial which someone there angeles “mentioned persons not someone had instructed was no evidence that to read books. some thing to is to only a time when the do

“said there’ll come read, learning how to then' not keep your children from only destroyed be will unions freedom' so will [sic] action, thoughts ages there’ll dark thought control when people speak freely won’t be able to places. taverns and other urged go,

“she explain audience to out and awhat vicious thing the smith act people is. are for books tried written years ago.” Black, concurring.

Mr. Justice Assuming that is a specific there law some kind in authorize, purports petitioner’s suspen- Hawaii which sion upon charges her, or I against agree disbarment with Mr. Justice for the gives, reasons he that Brennan, charges proved. My were not not agreement is to be considered however as a that indicating belief Hawaii has law, such a that it existed, would be valid if or petitioner given the kind of trial which federal courts constitutionally must afford imposing before such drastic punishment as inflicted on petitioner. concurring in the result. Stewart,

Mr. Justice. If, suggested by my Brother there Frankfurter, through, runs the principal opinion an intimation lawyer can invoke the constitutional right free to immunize himself from even-handed discipline for proven conduct, unethical it is an intimation in which I join. do lawyer A belongs profession to a with inherited standards of honor, experi- propriety ence necessary has shown calling dedicated justice. accomplishment He who would follow calling must conform those standards.

Obedience to ethical precepts may require abstention from what in might other circumstances be constitution- I doubt that »a example, For speech. ally protected disclosures of the confidential broadcast who physician of free right rely on constitutional his could patients discipline. professional him from speech to protect if it had charged if or case, it had been present In the attempted to obstruct or petitioner found been justice by interfering the due administration prejudice be the kind of case to trial, fair this would with a largely seems dissenting opinion of the language and it is charge here, not the But directed.* petitioner has been dis upon which ground not the that there agree I with the conclusion Because ciplined. support charge in this record to enough is not speech Honokaa, petitioner’s out findings growing judgment. I concur in Court’s whom Mr. Justice Clark, Frankfurter, Me. Justice join, Justice Whittaker Harlan Justice Mr. Mr. dissenting. of law practice from the suspended

Petitioner was charges Territory year. of Hawaii for one (1) related to a order was based suspension which the Honokaa, Hawaii, while by petitioner'at made in which she Honolulu, in progress, criminal trial was of the American the Canons of Professional Ethics *See Canon lawyer pend- as to “Newspaper publications Bar Association. litigation may in the ing anticipated interfere with a fair trial or justice. prejudice the administration of Courts and otherwise due Generally they the extreme are to be condemned. If circumstances justify public, unprofes- it is particular a statement to the of a case parte anonymously. An ex reference to the facts to make it sional papers go beyond quotation on file from records should any court; in extreme cases it is better to avoid but even Ethics, parte of Professional ex statement.” Canons and.Judicial Association, Bar 1957. American for the lawyer an active attorney of record Was after juror, of a (2) petitioner’s to interview defense, and judge The guilty. in a verdict of the trial had terminated to the Bar Association requested at the trial presiding investiga- Following Sawyer’s Mrs. conduct. investigate action disciplinary of and a recommendation tion, charges referred Supreme the Court which were filed with Hawaii Following a Committee. Legal the to Ethics matter its the Committee, main, agreed in the with hearing full the the Bar Association and submitted its conclu- charges of novo Court which made de Supreme the sion to Hawaii resulting examination of the order now record, upon the suspension before us. order was based the Hawaii Court speech, although Supreme Honokaa juror, also found that the of the interview view made, the circumstances under which it was constituted professional today misconduct. The Court finds the Supreme Court, conclusions of the Hawaii which suspension wanting based, order reasonable founda- tion and directs the Hawaii Sawyer court readmit Mrs. practice to the of law. Since this Court finds that suspension grounded order speech, on the it leaves unreviewed finding professional grow- misconduct ing out of the juror goes interview. When the casé back to Hawaii, Supreme the Hawaii is appar- ently free to take further disciplinary action. Putting charge one side the of misconduct relating to the interview of juror, I think the judgment below should stand suspension since the based on the miscon- duct relating to the Honokaa speech is fully supported by the record.

“We think,” says the opinion of Mr. Justice Brennan, “that our may review be limited to the question narrow whether the facts adduced are capable of supporting findings that the petitioner’s speech impugned Judge conducting iñ and fairness the Smith impartiality Wiig’s in the dis- upon integrity his reflected Act trial thus The limited reach of in that case.” justice pensation by the limited use made is illumined question this opinion. in Mr-. Justice Brennan’s in the record evidence portions of it no more than contained If the record opinion, in Mr. Justice Brennan’s upon that are' drawn question sole that the be led to conclude one would petitioner’s content the verbal case was whether findings of else, supported all disregard speech, suspen- petitioner’s Court on Supreme the Hawaii record as an issue that the is not thé based. Such sion was answer In the law as elsewhere entirety presents. question way the the depends on largely problem a likely beget to is not wrong question A put. presents right answer. before problem of the formulation Brother Brennan’s record, its use of the on resulting restriction and the us suspen- petitioner’s findings upon which the misconceive of rele- aspects the important neglect based and sion was seriously impairs result, As a vant evidence. of and, particularly, more the bar responsibility trials, by in the engaged lawyers criminal .conduct in the hustings and be tried on cases to encouraging to its subject and a court-room of within instead press, safeguards. constitutionally circumscribed scope per- and in true seen its must be the case Since findings of the in full the to state important it is spective, speech: relevant Supreme Court Hawaii conclusion, of court that this finding “It is the complaint of the Bar contained allegations paragraphs particularly more of Hawaii, Association been . . have sustained Til’ thereof . TI,’ T,’ of more evidence by credible convincing proof, by respondent that the said preponderance; a'mere than Bar and an licensee, a member of the of this court attorney duly prac- licensed and law, at admitted Territory of the of Ha- tice before all of courts charged paragraph II, being . . . in said did, waii as attorney in a of record for defendant then then case in the States District Court for pending United during Hawaii . District of . . the course .trial 14, 1952, on or December wit, of said about case, during speech public gathering Honokaa, to a shocking going were Hawaii, things that horrible and impossible; at said that a fair trial was trial; on being scrapped of the evidence were so all rules .of its government case; could make that the rules up made the case procedure evidence and were stopped proceeded; and unless the trial was tracks certain new crimes be created. . . . would it£¡

“Upon finding its and conclusion supra, as stated court saying this deems what she did her speech to a at public gathering Honokaa, Hawaii, . . December . when there then pend- ing ... a case under the Smith . . . she en- Act gaged participated in a willful oral upon attack justice administration and by the said United States District Court for thé District of Hawaii and direct implication statement impugned integrity judge presiding therein and the pending said case . . . and thus tended to disrespect also create for the courts justice of and judicial officers generally, contra to obligations the and duties assumed, as incident to the license, by her by every and person to whom a license has or shall have been by issued this court practice the courts of the Territory of Hawaii. She has thus committed what this court considers gross misconduct.” 403, Haw. at 421-423. adopted the conclusions, essentially

These Legal Committee,1 Ethics the charges and conclusions of full of record of a on novo examination the rested a de Committee, “unpreju- Ethics Legal the hearing before or of the Bar by findings that Committee diced” the of agreed the of majority A of Court Appeals Association. against complaint a Mrs. After Bar Association had filed the findings essentially in of fact Sawyer, complaint a that terms of was investigation Honokaa, full was to what had said at made as she reported the.Legal This then by Ethics Committee. Committee findings charges fact, Supreme the Hawaii its conclusions and argument a de novo which heard and made examination charges fully encompassed the the «record. It is clear that these Supreme findings own and Court’s that Mrs. basis the Hawaii charges against Sawyer fully fairly apprised of' her dispute. that were in factual matters Legal Report Committee, insofar as it was rele- Ethics . charged speech, to the as follows: vant investigated complaint has Legal “The Ethics Committee . . . report Hawaii and makes this filed Bar Association of charges, pursuant to Rule 19. the Committee facts and conclusions of Charges: “The (1) charges complaint with

“The two made in’this have to do Sawyer, Bouslog alleged improper Harriet referred conduct of Mrs. Honokaa, making speech report Bouslog,’ in this ‘Mrs. at as 14, (2) alleged improper Hawaii, conduct on December juror Fuller, P. her David with interview of in connection September 29, fully dated more set forth Bill Particulars 1954.

“The Facts: Bouslog attorneys finds one of

“The Committee that Mrs. in the United District Court appearing defendants States for certain America, Hawaii ‘United Plain- for the District of entitled States Kazuyuki being Fujimoto, als., Defendants,’ et tiff, against Charles during 14, 1952, Court; 10495 in that December Criminal pf gathering trial, public at she made a at a the course among Honokaa, things, other said, she' at which horrible shocking going trial; things there was no fair were on at

652 260 F. 2d conclusions. 189. supported record the that the in reviewing are of first instance Of we not court course set empowered aside the findings. are these We Hawaii, by of the Court of affirmed Supreme conclusions if its conclusions find reasonable Appeals, the Court is, judges if not unrea- support conscientious could —that strength a conclusion sonably have reached such on by of the evidence disclosed record and inferences be, fairly to drawn from it. real issue before us is whether evidence

Thus, supports the conclusion that Mrs. in her Sawyer speech, setting implica’tions in the said, full and she what in a engaged willful attack the administration of justice particular in which was she then actively participating, patently even impugned, by and if clear implication by words, rather than blatant the integ- rity presiding of the judge, thereby violated the obli- gations one in her situation, immediate judged by professional conventional standards, so as reason- be ably deemed to have Supreme the Hawaii committed'what Court termed “misconduct.”

One of the elements of the misconduct found Supreme Hawaii Court and the Appeals Court of was, doubt, without on the attack of the judge integrity case; they trial in the just up they along; made the rules as went that unless the stopped Act trial Smith in its tracks Honolulu there would a new crime.

“Conclusions Recommendations: “The Committee is opinion of the unanimous Bar Associa- tion allegations of Hawaii has sustained the paragraphs II and complaint III of its Bouslog, imputing and that Mrs. Judge trial, unfairness in impugning conduct of the the integrity Federal, of the local courts other and in comments made at Honokaa, guilty of violation of Canons of the Canons of Pro- fessional Ethics American Association Bar should be disciplined same.” Surely engaged. she which was the trial in at

presiding Judge Wiig referred to she must mean have does not opinion as the of mean, it Nor does name. by Me. Jus- evidence which assume, any to seems Brennan tice is irrelevant judge on the a direct attack consist of does not Supreme the Hawaii could question: the ultimate to as set of misconduct guilty petitioner found have opinion? forth in its Matsuoka portions

By carefully isolating various self-contained, insu- them as a concentrating on notes,2 of document, opinion lated Brennan Mr. Justice innocently attrac- an if indeed not put neutral, to labors But the Sawyer’s.remarks. on Mrs. tive, patina distorted entirety, dn its hot interpreted must be in its must, placed disjointed It parsing. exercise neglect we Nor can context time circumstances. reasonably say is what others people that what the fact what done meant hear. this is and are When hear law, state of the is no abstract attack on the emerges jof with Act trials analysis no of the dubieties Smith which or, events, all judges may agree even at right make, no Dickensian unquestioned have an critics but a injustices legal proceedings, on.the strictures particular of a conveyed attack the conduct plainly involving par- trial, presided particular judge, over herself Sawyer Mrs. ticular defendants whose defense ample support There is professionally engaged. was fairness that, making the reasonable conclusion of her target of this particular conduct appeal proceeding to a the trial was crowd outside while in her Sawyer including Mrs. court-room, inside both in and in com- judicial assault officer who fact understanding responsibility mon bears ultimate for the of judicial proceedings fairness and evenhandedness —the reprinted The 2d Matsuoka notes are at F. 205-207. sight In this presiding judge. examining record must scope reviewing power. lost the limited of our never be only findings are concerned with whether the have fair We findings If support supported record. are so the right we have to strike if suspension only down indeed transgresses constitutional limits. We must have as the of Mr. mind, opinion reminds Justice Brennan entire must us, speech. “context” this en- We complete setting, deavor to in its understand utterance as it sounded and was meant sound to auditors in its Honokaa, Hawaii, on December 1952. Honokaa meeting sponsored by a committee

for the defense of of the Hall, principal one Jack defend- ants in Smith trial way Honolulu,3 the' Act then under Mrs. was Sawyer lawyers one of the group publicly the defense. It was announced and advertised topic meeting would be the Smith Act public trial in Honolulu. The general was invited and press members of the were present, they as might well expected to be a meeting at where among principal were a speakers defendant and a attorney defense in a highly trial. controversial It was controversial, not an obscure, run-of-the-mill trial; receiving it had been front- page publicity press the Hawaii for weeks.4 The de- Hall himself was speakers fendant one of the principal Sawyer platform. and Mrs. on the was Her was, function by as Mr. Hall, explain stated “to the legal aspects of the prosecution.” Certainly setting this precludes a naive 3 Fujimoto States, v. United See F. 251 2d 342. g., e. See, Honolulu Star Bulletin for the month of December. fact, day Sawyer’s same speech In on which Mrs. reported, was banner, lead headline developments, announced latest court-room story by while the of the response action taken the court in to the speech occupied page the front for the days. next few See the seq. et 15, Honolulu Star Bulletin for Dec. Sawyer delivering Mrs. herself of

conclusion illus- trials, using on Smith Act abstract dissertation merely “typical present as trations from the Honolulu prosecutions. of such The envel- examples” of evils intensified much other talk, environment of her oping support to the conclusion that evidence, gives substantial discussing attacking Sawyer was, main, Mrs. con- general trial and that her more the Honolulu designed to have toward, demnations were directed to, that trial. particular ápplicability is found in the notes account of the The fullest meet- newspaperman covering by Matsuoka, made contempora- themselves notes, though These ings con- slightly expanded version of handwritten neous, are Matsuoka took and used temporaneous notes which story meeting.5 his of the Matsuoka the basis for news full accurate and con- testified that notes were Sawyer of what Mrs. said. everything” tained “almost more than half notes con- significant It of the directly solely to the Hono- relating tain comments following expansion explained nature hearing colloquy between at the before the counsel and Matsuoka Legal Ethics Committee:

“Q. transcription were somewhat You stated that the of ‘hese notes expanded your original from notes?

“A. Yes.

“Q. newspaper that also be true of the Would article? say expanded, mean, notes, like,

“A. I I I take I When when say, Dodge yesterday,’ say, ‘Dodge,’ would not ‘Robert I would or something that, expand to like and that make it understandable to the reader.

“Q. By expanding, adding not to it? No, adding

“A. not to. “Q. addition, anything kind, filling or of that but out what Or your indicated, is that it? notes right, by expanding

“A. That’s on it.” only- tes- afraid to witnesses were government the —that government the usually what testified they and tify, testify.” them to wanted the testimony from before the quotation is another

Here court: Hawaii Mrs. what tell the Committee you

“QvWill Bouslog said? Act in the Smith the defendant Well,

“A. a fair trial. get trial cannot about? talking she “Q. Act trial was What Smith “A. The in Honolulu.” one have setting the we to this evidence added When Hawaii that to who read the described, and the fact those much- trial, notorious, Act “the” Smith was papers rea- Seven,” how can one trial the “Hawaii exploited deter- escape, the basis of the record which sonably on Sawyer that Mrs. adjudication, mines our conclusion very trial directly the administration castigating was ?7 engaged So viewed professionally she was then lose aura of which she made specific statements support has cast them innocence about mis- Sawyer guilty professional that Mrs. finding justice attacking the administration of conduct integrity presiding trial of its impugning Honolulu judge. her Sawyer began reveal that Mrs.

Matsuoka’s notes get that the trial “to speech by announcing Honolulu Longshoremen’s at ILWU Ware- [International meaning lawyer regarding the Petitioner’s had no doubt speech. purport of the right speeches

“I will the Committee now—I have read these agree implicit Dodge’s ques- I and would with the conclusion in Mr. tion; namely going talk this was a about what was Now, Smith Act here in Honolulu. let’s not fool ourselves lawyers about that. We’re here.”

housemen’s She next that said “she wanted to Union].” tell about some rather shocking things go and horrible that on opinion at the trial.” The of Mr. Justice Brennan views as merely remarks “introductory” these to her later “general” comments, neglecting the fact that most of her later general comments were not at all but directly related to the trial of Hall, similarly neglecting the entire speech milieu which the was delivered. remarks were “introductory,” introductory in they that set but temper the tone and of all that followed. ample There is testimony that her audience so understood the remarks. Their understanding justified was by what she said, and they that so reasonably understood what she estab- said lishes the reasonableness of the conclusion that she intended them so to understand. is way This speech was remembered one of her audience. gave very

“I think she excellent speech, and what I quite can remember well was that she said she would like to tell the of the horrible and audience shocking things that went on at the Smith Act trial sever,"! and she Honolulu, gave also illustrations, I am I but, sorry, cannot remember them . . . .” Another witness when asked if Mrs. Sawyer had said there were shocking and things horrible going on, responded that phrases those had specifically been directed at the “Jack Again, Hall trial.” testifying after that Mrs. Sawyer had said the trial at Honolulu was not a fair trial, still another witness went on gave that “she various examples of things, that I don’t recall, that were going on, in what she called the horrifying, shocking trial.”

That this theme of “horrifying and shocking” so forcefully impressed itself on people- to whom she spoke strips the words of any neutral interpretation, and certainly if it justifies, does not compel, the inference that it formed the motif for the speech. entire Sawyer Mrs. This than that more establishes evidence large. trial at the Honolulu conduct of attacking was par- or permitting who clearly judge on It reflects things; at and horrible” “shocking in these ticipating drawn, -as Hawaii to be the inference it allows lowest inference, so that she did did draw Supreme Court inference only reasonable tne suggest reflect. To petitioner her may from draw we merely reflecting law or state of the indicting general fact that when deny is to the obvious prosecution, wholly unskilled audience, harangues lay lawyer exculpatory purposes, drawing distinctions subtle in judi- on a shocking things going and about the horrible the upon reflects total con- inevitably he proceeding, cial integrity all, not exclud- upon and the duct of that trial of the trial. responsible the conduct ing judge, aby doctor Certainly lawyers, if as were addressed we, shocking that things on the of the horrible theme speaker hospital, specific at X and the dwelt go on particular hospital, at we would examples of conduct that merely state of medicine general not assume that sad being impugned rather than the doctors and the hospital. at that administrators speech also in her that “there’s no

Petitioner declared case, up fair trial as they just make rules they go a along.” again, thing And “there’s no such all fair trial in a smith act rules of evidence have case.. government a scrapped By to be or the can’t make case.” reading are made evaporating say these comments they “obviously the law, that related to state of prosecution FBI . . . .” conduct of But charges the materials to illustrate these spe used were examples cific of the unconscionable use of evidence drawn trial, from as the defendant particular this himself Hall pointed hearing Legal out at before the Ethics Com large n fact, part speech up mittee. J was taken specific examples. petitioner with such To attacking law,” “prosecution,” or, the “state of the or the what, point, suggest is more to the this is the reasonably court could only draw, conclusion the Hawaii rejects the obvious force of the evidence that her refer to- the manner this throughout par ences were trial was conducted8 and it can being disregards, ticular not be often the whole nature and emphasized, tone, too. her setting speech. specify often did not who was sure, petitioner

To be guilty charged being of the sins which she were com- mitted at the sins of or trial; unfairness, ignoring this making up rules, doing, “anything everything necessary to convict.” such broadside attacks are When ingenuous made a court is not make the compelled to assumption they only were at are directed those who legitimately subject to attack, such when it is made lawyer haranguing the midst of a case master, public gathering. to a psy- It takes no chology if speaker to know that does not discriminate neither will the Inevitably audience. the accusation all those understanding who the common have covers responsibility. Whatever speaker secret reservations the may have he speaks when does not infuse he conveys. what sophisticated Even the most audience is not so trained withholding judgment that the heavy repeated and charges of in unfairness the conduct of impliedly this trial relieved the presiding judge, who bears responsibility basic 8 Sawyer herself, her court, remarks to the explaining Mrs'.' part out that her “was devoted to a discussion pointed prosecution the evidence on seeking in1this case is in( convict Jack Hall the other six defendants this case. . . .” The record discloses that other witnesses also that' her understood being up references were to the they along” “rules made as went a1ti particular this trial. responsibility for this of all proceedings, judicial unfairness. that, judge presiding on the

More the attack than merely implication. It was not at the trial does rest remarks about unfairness Again the clear. direct and must be read not up” were “made the rules that examples several outlining After but context. isolation outrageous evidence what she considered to her made remark case, petitioner in this being admitted as a trial in a thing “no such fair that there was case, scrapped all have to be smith act rules of evidence Matsuoka’s government can’t make case.” or the she to illustrate this proceeded then notes reveal hers, which, by relating in an earlier case remark confession been in voluntariness of accused’s had she report her with heard ver- issue, “a came to woman he bet police non stevens was a officer] [sic] [Stevens them, she testified out of one of but a confession refused to let the evidence supreme court [of Hawaii] here had no vernon stevens because chance this, federal deny judge with the same situation a testify sitting permits on a federal bench crouch9 to about then, previous in the case years ago. what was said they permit here yet it was the life and death of one. five a witness to tell what was said when defendant-was years graphic old.” This illustration was followed case, the remark that “there’s no fair trial in the they they go the rules just up along.” make Crouch awas testimony in the Honolulu whose witness been had is,1- course, The fact the notorious Crouch involved wholly Any grievances arising to the this case. irrelevant issues in testimony properly pursued orderly out of to be Crouch's were justice eventually appellate course of in trial and courts and here. See Party Board, Communist v. Subversive Activities Control 351 U. S. 115. speech, judge”

attacked earlier and the “federal Judge Wiig presiding who was over trial. This portion dispels any of the the con- speech illusions that demnatory by petitioner remarks made could not reason- of In ably thought be to relate the conduct this trial. to inescapably the context of the entire it is direct of integrity particular reflection on the fairness and this judge this case. This was no particular abstract rigors hearsay. assault on the of Petitioner attacked the of fairness the trial and of scrapping rules evi- pointed dence. She then a ruling Judge Wiig to she highly prejudicial hardly said was left doubt that was made this particular repeated trial. She then her charge that trial was unfair up. rules made suggest To the only reasonable inference drawn from these remarks is that conduct prosecution or the law evidence in the abstract was really impugned, too asking much from judges, even if accept we Mr. Justice Holmes’ judges view that “are apt be naif, simple-minded men.” Holmes, Collected Legal Papers, p. 295. The attacks on fairness and the misuse rules are made by vivid the illustration used— and that illustration directly involved Judge Wiig.10 10Certainly Sawyer’s explanation Mrs. of these remarks- does not help rationally us to avoid Holmes’ characterization. After dis cussion Supreme refusal of the Hawaii to admit previous in the evidence Sawyer, referred to Mrs. petitioner was asked: “Mr. Barlow: In other words, would it you be fair to

paralleled phrase that with the you: that Mr. Matsuoka attributes to 'With situation, the same judge, sitting a Federal Bench, a Federal permits testify years Crouch to ago about 27 what was said then’? “The I used' Palakiko-Majors Witness: case as a contrast testimony Mr. hearsay Crouch’s testimony and the conspiracy case. charges proven' which were found is true that

It in did not state terms that suspension of the as the basis To justice. to obstruct reverse intended petitioner ground on this to resurrect worst below two courts n pleading. common-law long-interred niceties of found petitioner was the basis of which charges on inability with “the are not to be read of misconduct guilty to understand or century common law the seventeénth every misinterpre that did not exclude accept pleading intelligence fired with occurring to capable of tation . States, S v. 207 U. Paraiso United pervert.” desire to her attacks on the fairness 368, 372. It was found judge “public” at a of the integrity trial and the of the in engaged the conduct actively she was meeting, while “gross misconduct.” rose to the level defense, of the in a private an attack made charge This is not has been there friends. Whether between conversation the' situation depend -upon must professional misconduct Thus, we would uttered. were improper remarks it and had before Hawaii court ignore have to what take into account we not consider, did compelled was this under which circumstances severely aggravating public' at a made made. This attack was speech was aas It advertised as such. announced was gathering That under Act trial then way. of the Smith discussion interest controversy public great trial awas matter case, present Act allowing in the Smith “Q. Judge Wiig was That right? is that argued yet. hadn’t been The motions “A. allowing present Act Wiig Smith Judge was “Q. No, but that case? Yes, “A. he was. right? you Is that “Q. were critical about? That is what (Emphasis reporting. I to the I “A. was audience.’’. left n

added.) being reported daily on the front page newspapers.11 Honolulu It is true that made the Island of Hawaii, not on Oahu where the place. took However, Hawaii 1952 was not the wilds of Africa inaccessible the time of Dr. Livingston, part but of a community -bound together by modern means of communication and transportation, and news be, could and was this case, instanta transmitted very neously by radiophone to Honolulu. See the Honolulu Star Bulletin for 15, 1952, p. Dec. 5. story The news of' petitioner’s speech inwas the Honolulu newspapers the day. next speech Ibid. The was made at a time when concerning motions the very petitioner evidence which castigating were still judice. sub The attacks on fairness,' descriptions the of the trial as horrible and shock ing, were made while jury the was open receptive to media of communication, impregnating the atmos phere to which juries, certainly in this are sub country, jected. though Even petitioner may prov not have had a able desire, specific intent, the pending to affect the trial its outcome, are really required we to attribute to petitioner the a child-like unawareness of the inev itability that her remarks would be reported and find way their to judge or jury, they did? very next day the speech came judge’s to the registered attention and so powerfully he felt called upon to defend his conduct the in open court.

The record is thus replete with support .evidence to the conclusion that virtually the entire constituted a direct attack judicial on the conduct of this trial during its progress by one of lawyers the for the defense. When a lawyer attacks the fairness, the evenhandedness, and

11See, g., e. the Honolulu Star Bulletin for the month of December. There are also throughout' references the record to the notorious nature of the trial. in which he proceedings a trial of the integrity

the inflammatory, public the actively engaged, himself is spe- reveals, supplemented with this fashion that record can con- presiding how the judge,, cific attack on was not. rules of law escaped that clusion manner in but the which assailed, abstract were being case were justice particular in thé processes of inescapably such an attack particularly, More conducted ? truly he It is who integrity judge. of the impugns the rights defend- guardian law as the embodies the If a is to be considered justice under record ants to law. exculpatory, read through to be entirety, in its will,be the' found be conclusive glasses, proof supported by Supreme Hawaii Court are findings trial, to a those that; pending relation evidence,, conclusion that findings fair basis constituted .' gross has . . misconduct.” petitioner “committed our task is at conclusion, at this Having arrived Sawyer prac Mrs. from the suspending and the order end, through be affirmed.. But year tice of one should law for strong runs of Mr. opinion out Brennan Justice findings suspen if the are supportable, intimation that This sion based on them would be unconstitutional. opinion’s of a law import must be the discussion if For evi yer’s right to criticize law. we hnd the of findings, dence no matter what we. supports think attorney an such suspending wisdom of basis of on only if the findings, we can reverse Constitution so com the-suspension mands. Nor does matter whether Legislature based an act of the Hawaii exer 'ór an power judicial Supreme cise of the of Hawáii Court. controlling question The is the a power Territory, of like a through State, whole, organ as a whatever the a Texas, speaks. Rippey Cas 504, State v. S. 509; U. McConnico, tillo v. Missouri v. 674, 683; 168 U. S. National, Dockery, Moines Iowa-Des 171; S. 165, 191 U. Florida, v. 244; Skiriotes Bennett, S. 284 U. Bank v. suggesting basis for (There is no 69, 79. 313 U. S. so of Hawaii power judicial Congress has restricted of by Supreme taken to bar the action Hawaii.) particular by raised this case—is problem constitutionally engaged petitioner in which this

conduct of of courts disciplinary proceedings protected from the by general disposed observations law?—cannot play the free of the course, Of speech. about freedom of a free indispensable prerequisite is an human mind thought meaningless without society. And freedom of Justices to expression. great But the two freedom mostly shaping owe the of the constitutional whom we protection Mr. Justice Holmes and speech, of freedom of Mr. Justice did erect freedom of into Brandéis, nqt dogma validity a nor enforce it to doctrinaire absolute Time, place limits. and circumstances determine the con- protection of The First Amend- stitutional utterance. pro- ment and the Fourteenth insofar as it Amendment, tects freedom of speech, exception are no to the law life by everything enunciated Ecclesiastes: there is a “For season, every and a time for purpose under heaven.” And one of the specifically instances enumerated “ Preacher controls our situation: time to keep silence, [A] and a speak.” time to 3:1, course, Eccles. 7. Of a law- yer is a person and he too has constitutional freedom of utterance may. exercise it castigate courts and their justice. administration of a lawyer actively partici- But pating in trial, particularly emotionally charged criminal prosecution, merely is not a person and not even merely lawyer. If prosecutor in this case had felt hampered by some rulings of the trial judge, and had assailed the judge for such rulings at a mass meet- ing, and a conviction had followed, prosecutor and that had been disciplined for such according conduct to is it think- disciplinary action, for such orderly procedure found conduct have that such this Court would able that exer- constitutionally protected a prosecutor was by the freedom, have or, would speech, indeed, of his cise stand? allowed the conviction to for the Sec- Appeals the other Only day, the severely rep- (Swan, Hincks, JJ.) ond Circuit Madden and response a attorney a for speech rimanded United States made invitation óf a school but prior by to a alumni law important trial, an criminal conducting he was' while pend- no to the although contained reference merely “expati- any case or to its defendants but ing States crime.” United organized ated on the menace of Stromberg, F. 1959. Even 15, v. 2d decided June fearless, able, the most circumstances —an favoring under competent scrupu- fastidiously impartial judge, atmos- a austere court-room lawyers, befittingly lous by jury case feel- phere public criminal where —trial accomplishment, every as ing deeply engaged easy is is no regard if due had to lawyer knows, is to be experienced a trial. spirit the letter and of the Constitution for such enough court-room, were, to seal as It is difficult justice pressures. outside The delicate scales of against by any from ought willfully agitated not to be without for the fair conduct participants responsible prosecutor sure, the trial. carries somewhat To.be responsibility in the maintenance of the stand- heavier justice -criminal than does for the-defense. ards of counsel responsibility surely the difference in not so vast But a constitutionally guarded for defense has that counsel petitioner himself as this has been freedom to conduct condign when that same conduct do, bring found to would - punishment .prosecutor. are is the specific conduct, we concerned with

What record, particular this of a lawyer, revealed findings applied like situation whether abstract suspension. a support lawyer would an abstract relating to deter- must have set forth we All the circumstances addressed meeting public a Here judgment. mine the a haranguing crowd defense, for the by counsel court, in proceedings of the to the defendant unfairness under certainty almost indeed high probability with meeting of the goings-on that modern conditions judge and presiding attention of come to the would interest public in a case which jury. place It took in story had been aroused. When tempers and public he felt judge, of the the attention meeting of the came to It is hard to his conduct. to defend obliged publicly of the hold that a member that this should believe his constitutionally entitled to remove is legal profession the public in he is an officer to case from the court which grievances against his press, express and to them judge. “Legal trials,” said conduct of the trial and the through to be won elections, this “are not like Court, radio, newspaper.” and the meeting-hall, the use of the 271. Bridges California, U. S. v. that in the absence of the substantial likelihood

Even what, judge reach the public gathering was said at a would jury, or conduct of the kind here cannot be deemed found attorney An ac- protected by the-Constitution. merely in tively engaged the conduct a is not an intimate essen- another citizen. He is and trusted and part machinery tial an “officer of the justice, in compelling court” the most sense. He does not lack in for a forum which to make his of unfairness charges or principles law; ample failure to adhere to he has chance to make such claims to the courts which he litigates. long any As tribunal bred the funda- legal mentals of our tradition, ultimately this still Court, judicial power exercises those claims will be heard heeded. immune from be, are and cannot not, courts

Certainly indulge criticism. course, may lawyers, criticism, to exercise special responsibility a they are under Indeed, goes before doing lawyer But when fearlessness so. charges that the trial fiercely gathering public unfair, judge lacks is participant he is a he speaks under which the circumstances (cid:127)integrity, he to his attack says imparts he but only sharpen what says He warping significance. inflaming and plead he his case into which walks very court-room and reviews established procedures travesty, are a sham. his client from such conduct “We protect governed by law, integrity a whose are society In re champion.” lawyer’s special guard role to Howell, (concurring J. 89 A. 2d 139, 142, 10 N. narrowly conceived this role No matter how opinion). betrayed lawyer engaged a has may be, by it has been who the Hawaii court. by in the kind of conduct here found charged tribunal with Certainly Court, supreme this law, place should be the last maintaining the rule of a integrity attacks on the fairness and of these a trial should find constitutional judge and the conduct of sanction.

I the judgment. would affirm Clark, Mr. dissenting. Justice join dissenting opinion While I Mr. Justice I think it add a Frankfurter, appropriate to few words way by emphasis. fact finders, Three different includ- ing body, Supreme Hawaii, administrative Court of on Appeals, agreed States Court of have United the facts and of fact shown this record. conclusions Mrs. in a Sawyer, while of counsel Smith Act ease then jury, on trial before a and Jack defendant Hall, chief speech- case, large public each made before a for Hall’s defense. gathering sponsored by committee horrible and Sawyer’s charged In Mrs. she “that speech, a fair trial; at that shocking things going were said all of the rules of evidence impossible; trial was could make its being scrapped so the Government were made procedure rules evidence and were case; that thé trial was and that unless the up proceeded; as the case new crimes would be created.” stopped its tracks certain she said Sawyer, of all Mrs. denies that one, No least has saying. she Hawaii declared charged what with her misconduct violative of the Canons gross action adopted by Professional Ethics as its court. strangely this these facts says, enough,

But in so “capable supporting findings” are not Sawyer integrity judge doing “impugned Mrs. case . . and thus presiding pending ... the said . justice disrepect tended to also for the courts of create 422. The judicial generally.” Haw., at officers says Sawyer’s that Mrs. conduct principal opinion merely general an innocent attack on the Smith Act and judicial trials held thereunder. thin.

But this broad leaves the whitewash too brush only testimony For not Mrs. state- Sawyer’s but also the lawyer ment of her own stand out clear and unanswerable. hearing Sawyer’s At Mrs. then Hawaii, the initial going said that hers “was talk about what was counsel on the Smith Act trial here Honolulu. Now let’s Her present not fool ourselves about that.” counsel has doing just talked the into and in so has doing that judicial processes. also made fool of our is say support To there no reasonable the evi- conclusion, dence for Hawaii’s as disclosed a fair read- a half ing years record some six and later and some only concurring the 12 5,000 away, miles all of are trained in the officials, law and who under whom passed upon oath made and these findings at trial and arrived appeal, at a conclusion no reasonable man could reach. By thus at this late date second-guessing those constituted who in regular authorities course have decided the contrary, facts the Court impugns the intelligence of the 12 individuals so participating and scatters to the winds the sincere the Supreme effort of Court Hawaii to preserve protect its own integrity and respect as well as that of the I regret law.

highest in our court today land has set these winds into particularly in our farthest outpost re- motion — —when spect for courts, the bar, and the as well as law, orderly procedure, is so much needed the world. set forth notes peti as an account of what here, and summarize them

Notes

notes not the However, trial.6 these were lulu persons Several speech. content of of the evidence testified audience at Honokaa had been who testimony their Ijhe Legal Committee, Ethics and before Supreme Hawaii part of the record considered was testimony support lends substantial Court. This speech finding that the basic intent and purport of the trial which Mrs. was attack conduct engaged had made her Sawyer day been she again morning. would be the next engaged Thus-, Matsuoka that Mrs. Sawyer spoke testified about trial; way “The Act that under Smith She people Honolulu. said she wanted to tell the shocking, about things some horrible that went on, and that Act Smith trial could be a fair one, they just go had to around and make rules to fit the situation. Iwas, think, That general trend.” Another witness testified that “She said that the trial was against Hall, Jack six others just brought were and that in, purpose its get at the ILWU; she said that Jack Hall was being tried on something years that he read many ago, and she said that the Smith Act trial there rules, were no they were making up the rules as they went along, and she said that F. B. I. could be called Federal cops, and that when the gov- they were stressing this case, and when ernment — approximately It is-fair to 80 of the about 140 lines of the reprinted Matsuoka notes as specifically record deal with particular this and the being evidence which was introduced in course, Honolulu. Of explained above, as we many have of the more general could, comments speech, the context reasonably of this taken to refer to the Honolulu trial.

Case Details

Case Name: In Re Sawyer

Court Name: Supreme Court of the United States

Date Published: Jun 29, 1959

Citation: 360 U.S. 622

Docket Number: 326

Court Abbreviation: SCOTUS