*1 189 During yеars parte several Commissioner made an ex adminis- missions. investiga- elapsed from trative sum between the first allocation this taxpayer penalties. 1950 taxes and and But the of these tion al- Tax trial of this was Court unaware that this administrative returns until the controversy penalty have been fraud must location included a it signed ob- waiver to have the Commissioner Form 870 consent feasible for tained, by formally otherwise, knowing deposition without that he penalty. or payees accepting cir- testimony In named these of some of the fraud cumstances, episode adds concerning accuracy we think this the vouchers nothing significance Commis- reciting payments specific them. present prove fraud. many payees sioner’s effort True, officers were of the flag many un- foreign ships them bewill Tax Court The decisions of the easily or doubtedly be located could not controversy remanded reversed testify. were persuaded But proceedings consistent for further payments re- individual more than opinion. this difficult to believe corded. It payees could 6, of individual even so as examined found and have been significant on provide direct check taxpay- inaccuracy accuracy of the Yet, present record er’s vouchers. payee to check with the shows no effort one of the vouchers. named even disregards thus When the Commissioner Proceedings Disciplinary Matter of In the evi- of direct obvious source
the most SAWYER, Bouslog against Harriet solely upon inference and relies dence Territorial Bar member particu- Respondent.1 general experience Hawaii, Territory on based proof larly accept clear as difficult to No. 15109. convincing. v. United 944, Cf. Fairchild Appeals Court States United 948; F.2d States, 5 Cir. Circuit. Ninth Bagel Bakery Sanitary v. Y. East N. Commissioner, 9, 1958. June supra. 17, 1958. Nov. Granted Certiorari Finally, we have considered an S.Ct. 153. See 79 argument the Tax Court’s ultimate sup conclusion as to fraud in this case is finding ported its on an earlier taxpayer occasion the settled an income deficiency by paying tax claim a sum penalty.
which included a fraud cf. But McLaughlin Commissioner, 1933, However, clear
B.T.A. there is testimony undisputed this record question the settlement was made negotiated lump of a the basis sum
figure. bargaining yield After thus figure concerned, acceptable
ed a
to all
appellees.
proceedings
Association of Hawaii as
Bar
1. The
being
pattern
revised,
Territory
thus
counsel
Hawaii
entitled
respective
Bouslog
their
followed
Matter
Harriet
briefs.
“In the
Sawyer,
original
Bouslog,
court deems
also known
Harriet
This
entitle-
appropriate
attorney
court,
opin-
more
law.”
In
ment
only slight
transcript
printed
Har
ion restores it with
to indicate
modifica-
Bouslog Sawyer
appellant
and the
riet
tion.
*2
See also
L. 19, 1953, find June dict was returned on ing er. *3 guilty.2 It dеfinite the defendants Atty., Barlow, Hono U. S. throughout A. William trial she the extended Atty. Sylva, Hawaii, lulu, N. Edward representing defend or more was Omori, Hawaii, Territory Gen., Morio sessions; missed ants. Sometimes she so, Honolulu, Gen., Atty. Ha Sp. Deputy legal busy in she was on research respondent. waii, for the case. cident during Sunday, On December STEPHENS, Judge, and Chief Before trial, period she went CHAMBERS, FEE, HEALY, POPE, on the of Haw town of Honokaa Island Judg- HAMLEY, Circuit and BARNES 3 Hall ad and with aii the defendant es. meeting public primarily at dressed a of the International members tended Judge. CHAMBERS, Circuit Longshoremen’s and Warehousemen’s Bouslog Sawyer became segment segments Harriet Some or Union. Bar of Hawaii Territorial financing of the member in union in were whole except then, four in 1941. Since part defense of the The exact seven. years in when she II was meeting War purpose World of the seem does not engaged Washington, C., has been D. she Sawyer ap Hall clear. and Mrs. were practice of law Hono- active at although in the parently speakers, the main large part of her work has been A lulu. there were Based on others. their own to 1941 she had Prior courtroom. subsequent testimony, be fair practice in Indiana gathering admitted been kind characterize as some “indignation Massachusetts. old of an ing.” fashioned meet speeches The of the two resulted August 29, 1951, a federal indict- On throughout publicity The against in newspaper the Islands. returned in Honolulu ment judge, stories caused the trial Kazuyuki Fujimoto and Jack Charles Wiig, suspend tempo Jon Honorable Wayne Hall and other residents of five rarily question Sawyer charging trial and Mrs. Islands them Hawaiian speech open her court Hon Act, at jointly violations of the Smith colloquy done, When the okaa. Day On Labor five 2385. U.S.C.A. § Wiig announced he was not satis days later the Island Kauai she on explanation fied with and he in pleading the cause of the defend- Attorney Day the U. S. for the Dis audience, structed before Labor casti- ants investigat make general of Hawaii to an gating trict cases in Smith Act Sawyer’s explanation (Mrs. particular. ion.4 case That this colloquy charges against with the court is forth as set in no her and resulted C.) proceedings Appendix No representation in the commenced date brought. were ever court district of defendants clear. during waii the Smith Act trial Hono- were reversed 2. convictions The participant and an January 1958, lulu active on the au- September 2, on He left the office thority States, trials. of Yates v. United appears He to have 1954. boon active L.Ed.2d 1356. S.Ct. U.S. preparation pre- States, Fujimoto case. He v. United 251 F.2d See legal it to the ethics sented committee at 342. hearings began November its on the Island is located Honolulu Then, July 8, 1955, popular- Island of Hawaii is Oahu. appointed attorney general pre- throughout Territory ly known rep- case to the court. sent the Barlow’s “Big Island.” as Hawaii complaint, behalf resentation judgment, has Barlow was now continued on the United 4. A. William Attorney аppeal. for the District of Ha- States verdict, “Complaint Rule 19 day Under so after Within a Jr., juror, Fuller, suffered P. David Honorable, “To the Justices generally became nervous breakdown Court of the terri- incompetent. “on case was most tory of Hawaii: mind;” disputed much how his “Comes now the Bar Association rationality of various times Hawaii, unincorporated asso- Sawyer Mrs. conversations. Visits ciation, and information and be- Sawyer Fuller and Hall to from Mrs. complains lief Honorable sister-in-law, Ellen followed. A Court under Rule 19 of Rules Cabreros, present well as Fuller hereof as follows: *4 or more Mrs. Fuller and one I. consequence of Fuller children. As support Bouslog Sawyer, of the motion these visits and “That Harriet Fuller, Mrs. Cab- for new trial Mrs. hereinafter referred as the Li- to censee, and Hall all made affidavits reros is and all herein- times by Fuller,5 continuously statements made to them after mentioned has admissible, which, attorney-at-law duly the effect of been an li- by prove practice Fuller’s statements censed and admitted to be- Sawyer and Hall on Mrs. went fore all of the courts of Terri- jury tory room in secret delibera- of Hawaii and before the United purpose impeach was to tions. States Court for Dis- District Parenthetically, Hawaii, such affidavits verdict. ought trict of during to have been stricken said Licensee is now and (They file of the Smith Act case. merely were of said times herein mentioned has considered.) hard to practitioner It been a before said did believe counsel not know of their courts.
inadmissibility. II. Licensee, ap- the said “That while After close of the trial pearing as counsel of record Wiig orally requested Bar the Hawaii certain defendants in that certain through Association, president, its case in the United States District Sawyer’s professional look into Mrs. con- for the Court District of Hawaii en- during duct the trial. America, titled ‘United States of Plaintiff, Kazuyuki Fuji- filing vs. Charles This resulted in the association July 8, moto, al., being 1954,6 Defendants,’ et with the complaint Criminal Number 10495 in Court Hawaii one with the said Court, during charges against the course of the trial two misconduct case, wit, of said on or about De- Sawyer. charge One Mrs. dealt with the say during cember did speech; Honokaa the other with the public gathering to a presentation preparation manner Honokaa, Hawaii, that horrible and surrounding (the conduct) of the affi- shocking things going were on at charge The second davits. did as- trial; that a fair said trial was im- falsity, per se, of the sert affidavits. possible; that all rules of being complaint scrapped were The text as fol- evidence so the government case; could make lows: its grieved.” By sign an Fuller an amendment 5. Mrs. refused affidavit made on April 21, 1954, Sawyer. charges by prepared for were authorized attorney general, to be filed April 21, 1954, its Prior under Rule Hawaii, any per- Bar Association charges against attorney au- were aggrieved. son attorney gen- be filed thorized “any person ag- of Hawaii eral Bouslog and filed pro- Liсensee Harriet the rules evidence pro- States District the United made as the cedure July 1, of Hawaii on the District ; the trial unless ceeded 1953, in case of United States new stopped certain its tracks America, Plaintiff, vs. Charles be created. crimes would Kazuyuki Fujimoto, al., et Defend- III. 10,495. ants, Criminal No. during did said Licensee “ “That Bouslog ‘Affidavit of Harriet shortly after of said trial and “ course Hawaii, ‘Territory of visit rendition of a verdict therein “ ‘City County of Honolulu-ss. juror known her to “ being ‘I, Bouslog, Harriet first indisposed, submitted thereafter duly say: sworn, depose oath concerning an interview her affidavit “ Friday evening, ‘On June juror presiding 1953, shortly 6:00 o’clock before judge indicat- under circumstances my telephone call at home received ing comply with stand- a failure to Cabreros, from Ellen sister of Fuller required professional conduct ards of *5 juror David Fuller P. who sat aas practitioners law licensed Fuji- the case United States practice Court. before this moto, et al. Mrs. Cabreros asked me “Wherefore, the Bar Association brother; if I come and see her could prays Court to refer Hawaii this seriously that he was ill. complaint the Committee on “ T went to the Fuller home at Legal Ethics and Unauthorized 1734 Colburn and taken Street investiga- Practice of this for Court n Fuller, Mrs. Cabreros and Mrs. conformity tion in Rule 19 of into the bedroom Mr. front where the Rules of Court. lying ap- Fuller was in bed. He Honolulu, July Hawaii, “Dated: peared gravely ill. 8, 1954. “ wife, ‘I talked with his Helen “Respectfully submitted, living Fuller, in room of their “Bar Association of Hawaii presence home of Ellen Fuller “By Masaji Marumoto, /s/ friend, Cabreros and her Grace “Its President. Oshiro, and two of the Fuller chil- July 8, Piled All “[Endorsed]: dren. the members of the fam- Supreme ily present upset “[Title of were and and in tears at the state of Mr. Fuller. Mrs. Cause.]” Fuller stated she had called a that Territory Court of the doctor her husband to examine and complaint of Hawaii referred to its informed me her had that husband Legal investiga- Ethics Committee for ill since been dict, the return the ver- early holding hearing tion. Before com- particularly and since required mittee the Bar Association of morning Saturday, June particulars Hawaii to furnish a bill of morning 1953, the after the verdict charge. September on the second On was returned. 1954, the bill was filed as follows: “ Fuller ‘Mrs. said that Satur- “Bill of Particulars day morning, day immediately “Pursuant to Order entered on following guilty the verdict of in the September 21, 1954, by Legal case, Smith about five o’clock Committee, following Ethics Bill morning, in the she found her hus- hereby of Particulars furnished: praying, begging band on his knees Copy “1. mercy, saying of affidavit Har- God he had sin- Bouslog, ned, riet eyes subscribed and sworn he had lied notary public God; to before on the that Jack Hall was innocent day July, signed first a frame-up; and the case was During this man; he did. good nodded that those Jack Hall is a Fuller, time, humanity sister good his doing Mrs. people Mr. present room. somepne trying friend were to block here struggled and make Fuller talk time them. She said that since, because himself heard but her that had told her husband physical condition and weakened jury only Govern- looked at the voice, difficult it was scarcely of his loss talked case and ment’s He stated he said. understand and their side defendant’s about the however, he understandably, case; her and the that he asked get a help forgive and wanted wanted him because children to wrong get wrong something conscience clear and it done straightened out. late; he had done he said that one was too “ jurors defendants arrival, said the my the innocent, ‘Shortly Doc- after jurors other and when the pres- Chang I was arrived. tor juror guilty,” “Guilty, said, during con- bedroom ent room and Chang threw book across the Dr. versation between forget they just it. well although Fuller, hear I could Mrs. her husband Chang Fuller Mrs. said that Dr. between conversation go see the living had wanted to Mrs. Fuller lied, and he had once Chang confess that Dr. had talked After room. house but tried leave the twice Fuller, Fuller me Mrs. told mentally physical- upset examining was too ly after the doctor said the house nothing and unable leave her husband *6 himself; he fell struck his , him, and wrong that physically he with that and She that she other bed, head. said rest in and that would to urged family him members of her might necessary take him to to it go anything, to do not to see get not to up hospital he unless would to a forget it, to and about go the bathroom. to only get would himself in he that “ left, doctor had in the ‘After the get and would them in trouble Fuller, presence Mrs. of Mrs. might go trouble, jail. he to and that friend, and her Cabreros Grace “ Fuller said when he ‘Mrs. that Oshiro, Mrs. Fuller’s and eldest to, to leave and was unable tried daughter, gave I Mr. Fuller water family she and other members of the pi’opped he and was bed. put him in bed back and tried to Again he tried to talk but seemed quiet; kept keep him that he shout- doing difficulty find so. He said ing crying praying saying and and he wanted to talk the matter about frame-up, a case was that that any- Hall and would talk Jack or wrong, had done and told he get one at time to clear con- away stay children her to and science. him because he was not clean. She “ left, ‘Shortly after this I believ- his condition said that get seemed to ing Mr. Fuller needed rest. I made days worse and worse as the arrangements with Mrs. Fuller and Friday, went until on day June to see Mr. Fuller to come him the all he inwas bed and did day with Jack Hall. next get up all, move or and not his at “ scarcely whisper became voice be- morning Saturday in- ‘On was he cause was hoarse from the shout- by Mrs. formed Cabreros that ing days. previous feeling considerably brother “ and wanted to would be better ‘After the conversation to see us. able Fuller, I went in bedroom Mrs. “ Mr. Hall and arrived at ‘When Mr. asked Fuller was and him where 1:00 Fuller home o’clock about a drink water. if he wished He afternoon, Saturday Mr. some he said that at time heard June Fuller, if put defendants weren’t con- hand Mr. that Hall out his get- for a victed Hawaii’s looked Mr. Hall it would affect Mr. Fuller at ting finally long hand. statehood. He said that took time jurors side the Govern- Mr. Fuller he did Mr. Hall told anybody against him; anything he said ment hold Party get well. member of the Communist wanted Mr. Fuller “ purposes know must what its Hall ‘Mr. Fuller said to Mr. guilty. and are guilty by other from jurors talk of “ jury room, jury said that wanted he believed ‘He testimony. guilty protect his Kawano’s jurors He said that had vote he they on the for defense side asked afraid brothers because was testimony Kawano’s show that if he Mrs. fired not. would be did talked none of defendants ever Mr. Fuller’s Fuller that both of said overthrowing destroying Harry, brothers, about Leonore and work- government. Isle-Ways. Fuller said ed for they only “ wasn’t juror ‘He said said exhibits looked at Government during number of the delibera- times defendants’ exhibits at the go tions that he the Main- frame-up and was a case. He said it they get land should it over and that himself. He said said he blamed with. they ex- looked Government “ ‘He that if he voted sug- any time someone hibits other defendants he afraid the looking gested exhibits defense jurors tell it and it later,” say, “Later, juror would some family. He said would hurt his got He never around to it. jurors played cards he knew believed the said that jury room. He said that there was were defendants innocent shouting anger jury room afraid of what would time but persons who between the guilty. happen he voted not *7 prosecution and those who were the “ jury that the in their de- ‘He said Particularly defense. for the decided that the Com- liberations got prosecution angry jurors for the Party conspiracy a with- munist was holding the ones were out. began they hour after in the first “ they ‘He said didn’t take deliberations. said that their He ballot, anybody on secret Judge instruction of which speak up side and defendants’ they used decide was the this get try to others would then the told one which them first to decide He back down. said that them to conspiracy, and there was whether Attorney jurors talk he heard about Party they decided the Communist and said he was smart too Gladstein conspiracy. He he knew was said he had defended Com- and that he heard the defendants New York and had served munists before were convicted the case start- jail He said he sentence. jurors ed on ideas had before jurors talk about some heard He heard the case started. said he against He Communism. war Judge they jurors tell the two they consider didn’t said opposed during to Communism were for the defend- evidence character He the examination. said that no ants. taken, every- were ballots so secret “ thing ju- juror the second ‘He said knew how each voted. He one ry defendants jurors decided said said some Communist bring members were wouldn’t Government thing they Party. decided charge next The wasn’t if true. He said .196 Complainant they Bar Associa- “The were Communists was that they affirms nor over- tion neither denies intended to must have allegations falsity government. He truth or said that throw the affidavit facts in the Kawano and contained believe himself did not by say they Harriet not the Licensee did filed he heard others and Bouslog. Complainant after informs Muller. He said believe they they the above-re- the Committee instructions asked for the affidavit, contents, and de- its which told them to cited usеd the
there
whether
cide
spiracy,
place, when Jack
mental
of the Communist
tried
it
He
time,
me this
praying
When
ernoon.
audible.
Fuller
Fuller
Mr.
Mr.
shortly
sitting
above
“
“
“
“
“
“
“
“
would
leave,
kept
‘[Seal]
‘Notary Public,
‘Further
‘Subscribed
‘When
‘After
‘After
‘Mr.
speak.
to leave.
Fuller
first whether there
Fuller
Fuller
occasion
was,
we
was in better
in a chair
condition.
for a
after 1:00
leave and raised
although
quiet
Hall
looking
and
1st
Mr.
be better to wait
came to the conclusion that
defendants
We
Before
head
Mr. Hall started to
arrived,
again pleaded
this
conversing
put
lot
day
Fuller
“
affiant
Mr.
very
‘/s/
by Joseph Kealalio.
of talk about
and sworn to
/s/
her husband
then talked
Sunday, June
conversation
Hall and
leaving,
Fuller and
o’clockin the aft-
again
Harriet
Mr. Hall but did
Party.
off
begged
short
accompanied on
Mr. Fuller was
July,
J. D.
saith not.
appeared
words
were
First
physical
living
with Mrs.
went to
his hands
period of
*8
until Mr.
Marques,
Mr.
I started
members
were not
Mr.
Bouslog.
He
Judicial
decided
Bailey.
before
helped
a con-
Jeave,
room.
took
Hall
Hall
bed.
him
see
the court
forth as
court
that
new evidence
charges and entered
cember
cause,
de
charges.
on
July 1, 1955. The
cause to Mrs.
on November
adjourned
Court
log
troduce evidence
indicating
against
United
Ethics and Grievances
manner in which
After a return on the order
required
ican
other related cases.”
Harriet
furnishes the basis for the
The committee’s
Prettyman
Opinion 109 issued March
unethical
standards
[739]
novo.
the record
signed
the
and that the
forthwith issued
saw no
on
Bar
the
hearing
However,
corroboration
Appendix
should
(This report is hereinafter set
April 6,
the Licensee
Committee
1954. The committee’s
States,
sessions was concluded
Bouslog
on June
Association
Supreme
conduct
pages 745 and 746 and
24, 1954,
before the committee. No
practitioners
Sawyer.
failure
witnesses as such.
was received and that
make
professional
before
Complainant
findings
[4 Cir.]
it was
unprofessional
in elaboration
hearing
A.)
judgment
case of Rakes v.
is condemned
it was
Court determined
by
its determination
and after several
an order
Harriet Bous-
it
comply with
stipulated
Professional
sustained the
should be one
sustained the
before
169 F.2d
and filed on
10, 1934,
commenced
Licensee
obtained
conduct
will in-
the same
charge
charge
Amer-
to show
on De-
report
show
The
Territory
judgment
suspended
Circuit,
day.
Mrs.
Hawaii.
The
“
period
Sawyer
practice
for
July
the
expires
‘My commission
”
judgment
yet
year.
has not
be-
The
15/53.’
unity
“Sponsored by
Supreme Court’s
The
the ILWU
come effective.7
committee,
reported
Ex-
defense
one of
opinion
at
presented the stopped Honolulu was its tracks people were in who other seven people there would be a new will crime— original not his had Matsuoka audience. charged knowing is in- with meeting an ex did have but notes cluded in books. few made a panded within he version Sawyer’s great With deftness original days the incident after counsel interweave the defense versions newspaper’s request of the at the *10 opening reply- of tbe brief respondent is that it terization their for Counsel 9. Sawyer really say dispute says, didn’t much “Mrs don’t that Mrs. brief insist trial, concerning and that Sawyer spoke Honolulu was of about at Honokaa consequence.” no But- a fair charae- trial. Honolulu Sawyer’s courthouse, quite a howl such It is true that set incorporate judge terrified? would be comments did harsh not Maybe others, Judge Wiig by for of this circum not counsel name. On heavily. respondent But record. relies stance the trial, totality a a unit is a lawyer Nor is this a of a under case judicial process, en which is of making strain an ill-advised get protection from those who titled to appreciates later in calmer his moments judicial temple, es license a their pecially Respond- and error is humble about it. engaged in those who are exercised ent adamant that During progress the particular its trial. right. So, her constitutional on that she only proper forum for is the courtroom view, stands or falls. In our she falls. lawyer clients. We vindicate his respondent’s points: Seriatim we note Judge Wiig accept plea cannot specification 1. The Territorial as called name or identified was not (Section 9701, Statute Re.Laws Hawaii thought is Such a thin and six-feet-four. 1945) applied by below,11 the court person, really judge’s deprive appellant liberty so as to of and represents, pro entitled property process due without law. tection. (a) findings and conclusions contempt Far from the different wholly evidentiary sup- without edi- cases of Times-Mirror with its port and unreasonable inferences Bridges telegram.10 with his torials and from the evidence. contempt This case. The Times is not (b) Respondent arbitrarily Bridges court officers singled adjudged by out stand- charged duty keeping with the ards of other misconduct than the temple clean. Nor was this a case of a lawyer unconnected with accepted usual standards Ameri- case com- can Law. menting meeting public lawyer or a (c) Respondent past arbitrarily point who had carried his case singled adjudged by decision, carrying now stand- cause out proof grous- people. private ards of other than the Nor was usual the ing among accepted and convincing friends which we standards clear and assume lawyers legal evidence. are entitled when events going way. public are not their It was a point, As to this with its three meeting. subdivisions, that, respond our idea is reject danger present present clear
We ent’s view of the evidence party contempts upon of third rule isn’t correct. And her view of the Bridges challenge Respondent called State of Cali- evidence rests. accept overly How could puts fornia. the notion dissects the evidence and too lawyer very gloss before a same innocent on it. findWe the evi disciplined amply adequately could be his voice would dence as whole mighty findings cacophony justifies to a have to rise reach- and conclusions. ing causing point respondent see audience We no evidence that (a present danger) singled arbitrarily clear and to march on out. Bridges California, person examined, 10. v. State shall U.S. admitted qualified 86 L.Ed. S.Ct. 192. reinstated unless he is under the Organic Hawaiian to vote in the Qualifications. The Su- “Sec. Territory Hawaii and shall have ac- power preme shall have the tually registered voter;] as such and examine, prac- admit reinstate supreme power shall have the sole in the courts of record titioners such suspend revoke or the license good persons moral character who practitioners or to dismiss such or sus- the United are America, citizens States practitioners pend them from the roll of * * * [who] have taken malpractice, fraud, deceit or other prescribed office, may oath of gross misconduct.” qualified purpose; for that [but find *11 200 point We (b) of most view the evidence. favorable On subdivision right uphold Judge Soper Rodell’s respondent quotes Professor Circuit vantage point say 467, D.C.Md., F.Supp. from Yale Ades, his in re In say. when But page 481, what he wants to as follows: simultaneously speaks har- he he is not surrender, attorney “An does not try- assing very is court which he the important assuming place ac- the ing respond- an case. Remove unfinished in the administration corded to him and of the evidence ent's innocent view right justice, as a citizen of his significance. again point the is without courts the decisions of the criticize statute, point in- The manner, 2. that “the respectful fair and in a and herently ap- applied, without independence bar, and as well of as the the standards, deprives petitioner propriate always judiciary, of has been the contrary expression encouraged by of freedom of courts.” the. the provisions Amend- of First and Fifth Also, parte Steinman, Ex Pa. applied, the ments. So construed and Am.Rep. quoted: 637, is operation and creates a effect statute of is a “Because a man member prior over censorial control and restraint bar, not, under the the court will lawyers public of in dero- utterances guise disciplinary proceedings, of gation independence of bar of any part deprive free- him of justice.” and the due administration of possesses dom of which he any law We are not familiar a citizen. acts decisions The discipline requires a for the statute state, in the courts this cases that lawyers categorize law of yer in detail the determination, final have reached Further, no contra canons. we see exempt honest are not from fair and Amend vention and Fifth the First comment criticism. It is during ments. When one concludes attorney an when transcends lawyer of is under re record trial legitimate limits of criticism public applicable straints to the not responsible will for an be held general, applicable perhaps not even liberty speech. We abuse his defendant, point is answered. independent an will understand that bar, court, independent as well anas sub-point on the Sixth listed always vigilant defender (that is, a “To Amendment: fendant) de rights.” Troy, civil In re 43 R.I. Assistance Counsel for 723, 111 A. 727-728. defense,” we hold has no merit. To night fearless, lay on re These cases themselves turn not down says spondent. Soper barrage Note that on the court. conduct Such attorney bravery has to criticize the antithesis of or “the As in “a fair “the decisions” of the courts Amend sistance Counsel.” The Sixth respectful manner.” Ex does Note that such counsel can be ment says, entirely again
parte Steinman12 acts and de “The uninhibited. Here (2) respondent’s point cisions of courts own view of state projection reached determina from cases that have tion, final evidence exempt argument. respondent fair and makes honest her criticism.” This subdivi comment and point judg- “The 3. third is: entirely (b) when one reaches falls sion beyond ment of the territorial court was un conclusion the comment was jurisdiction contrary its to sound certainly wrong seemly and time. governing policy the relations between (c), respondent re- local federal courts because As subdivision among things, upon intimately heavily, other creates standard conduct lies affecting justice administration of of Professor Rodell statements reviewing again judgment In latter. Law School Yale L.R.A.,N.S., Breen, In re 30 Nev. P. Cf.
201
Examiners of State
v. Board of Bar
evaluation
its own
will make
this court
752,
Mexico,
232,
353
77 S.Ct.
New
U.S.
own stand-
its
and determine
facts
the
Konigsberg
796,
State
1 L.Ed.2d
ard.”
California,
252,
S.Ct.
77
Bar of
722,
353 U.S.
says:
point
short,
What
In
charge
810,14
is
1
L.Ed.2d
when
Sawyer
none of
did was
Mrs.
ever
deprived
respondent
made that
has been
court because
of the territorial
business
process
fifth
of due
law under
court.
federal
concerned the
conduct
impinges
the result
amendment
that
territory)
(here
is the
But
state
amendment,
rights
on her
under
first
sponsors
jurisdiction
primary
that
taking
justified in
to look
we are
case
mainly presents him the
lawyer,
depriva-
at it to see if
of such
the claims
public.
Even had the
It has an interest.
any validity.
we
have
In
sense
tion
court,
open
still
in
federal
been
conduct
jurisdiction.
have
and,
we take the
Then
Is
In re
has an interest. See
the state
view,
in our
there was
we find that
serman,
87
903. Cases
9
A.2d
N.J.
rights.
deprivation
no
of constitutional
type
may
Isserman
arise like the
chain,
complete
can
Thus we
and one
will feel
should stand
which the
it
state
argue:
logically
never
then
we
therefore
entirely
handled
matter be
and let the
jurisdiction.15
whole, after
On the
But
federal
of the street.
side
examining
record
our view
it is
argument
support
no
lends
respondent’s position basically has
territory
say a
state
we should
little
than a claim that
to more
territory
act. Rather should the
carrot
be commended than chided.
a different view
the territorial court took
judg-
of the evidence than hers and the
judgment
Point
is that the
five
claims
a little too harsh. Such
ment
Supreme Court
arbi
the Territorial
trary
So,
wouldn’t hear.
within the
we
limits
point
last
must
and excessive. This
permissible advocacy,
suppose,
we
we
necessarily
assume that the conduct
appeal expanded
find the
to in-
claims
relatively
Respondent was
innocuous.
deprivation
clude claims of
of constitu-
has
an officer of
court.
term
rights,
tional
claims which we hold are
vitality
transparent euphe
is not
solid.
mism.
segment
case,
On the second
all facets of this case
this court
In
affidavit,
Sawyer’s
Fuller
counsel
jurisdic-
spectre of
has been
by ignoring
completely
meet it
opening
in their
general
have
tion. This
does not
closing
Finally,
brief.
in their
jurisdiction
work
to review the
they say
brief
it moot because
Our
territorial courts of Hawaii.13
scope narrowly
Supreme
imposed
punish-
by statute.
defined
We
point,
As
ment thereon.
we can-
plenary powers here that
do
have the
agree.
page
The court
425
of its
not
opinion
might naturally
in such cases
have
reports
(having
41
Hawaii
Angeles
(In
County
re
Lavine’s
Los
suspension
first announced the
of one
Cir.,
Society)
F.2d
9
217
190.
Pioneer
year
consequence
of the Honokaa
jurisdiction
speech)
proceeded
If we have the
then
to the matters
hangs by the
We
narrowest
thread.
the Fuller
incident
affidavit and
finally
such
as Schware
think on the
cases
line
concluded with:
thereunder,
corpus
§
13. See 28 U.S.C.A. 1293.
all
erased
habeas
proceedings,
Rico
of Puerto
“Final decision
and in all other civil cases
controversy
Courts
Hawaii
the value
when
exceeds
appeals
$5,000,
First
for tlie
“Tlie courts
of interest
exclusive
and costs.”
jurisdic-
Circuits shall
and Ninth
Hood,
Bell v.
327
14. Cf.
U.S.
appeals
final decisions
tion of
L.Ed. 939.
S.Ct.
supreme
of Puerto Rico and
courts
tho
States,
respectively
Hawaii,
v. United
Cf. Theard
in all cases involv-
U.S.
Constitution,
ing
77 S.Ct.
L.Ed.2d
laws or
treaties
authority
ex-
United
States
*13
“However,
matter,
pеrmis-
ment.
the
That would
instant
have been
sible,
Many
this court will let its hereinbefore
we
disbarred at-
think.
expressed
torneys
again
disciplinary order sus-
become reoriented and
pending
way
respondent
the said
make their
licensee
back into
bar.
the
practice
from the
in the territorial
respondent
If the
show some
should
year
requiring
for
courts
and
genuine
appreciation
remorse and some
pay
suffice, although
her to
error,
costs—
might
of her
it
the Su-
deeming gross
also
misconduct her
preme
Court Hawaii would ameliorate
repeated
interviews with and
long
its decision.
as she
But so
con-
interrogations of David Fuller.”
litigate
ceives that
has a
she
given
us,
castigate
day
To
is a
statement
the
and
(cid:127)penalty
charges
night (or
very
imposed
recess)
court,
for the two
is
at
the
the
concurrently
place
penalty
working,
same
for both
honored
which she is
—the
charges.
berating
However,
tinge
there is
conduct of
trial which
the
the
pronouncement
possibly
morrow,
the
will
she
on
which
resume
the
indi-
does
charge
practice
not deserve
cates that
the Fuller
been
law.16
might
before
alone it
it
have not im-
applicable
We find
here much
year’s
posed
suspension
a full
on that
Howell,
said in In re
89 A.2d
N.J.
charge;
dowe
not
If we
know.
were re- 652,
Attorney
653. There
Howell un-
versing
findings
the case on the
great provocation by
newspaper
der
penalty
charge,
on the
we would
first
sought
editor
the editor
and severely
out
(because
clear)
matter
not
the
refer
riding crop
beat him with both a
back
the matter
to the territorial court
rubber hose. This was conduct far re-
clearly
to determine
anew what sanc-
litigation.
court,
moved
per
from
The
apply on
tion
intended to
the second
curiam, quotes Canon 29 of the Canons
charge.
of Professional Ethics of the American
Bar
the
Association to
The evidence
second
the effect that a
sustains
law-
yer
charge
findings
appears
should
uphold
“strive at all
from
times to
dignity
honor
and maintain
court’s committee and the
it
court
profession
improve
is made.
self which reference
quite
It
evident, however,
law
jus-
on
sec
administration
respondent
continued,
tice.”
charge
The court
alone the
“An
ond
at-
torney’s responsibility
intact,
courts,
maintain
without
is to the
be able to
profession
very
public,
breaking,
thin thread
which
and his
may
give
points
misconduct
such
have held there
a nature
as to
engender disrespect
jurisdiction to
for the law
us the
test
record.
which is
his basic trust.”
punish-
Appellant contends that her
Mr.
Brennan,
Justice
then
the Su-
applies
a different standard
ment
preme
Jersey
Court New
and now of
lawyers
applied
other
has been
than
Supreme
States,
Court
the United
penalty
Territory and
is too
concurring opinion
wrote a
in the Howell
severe;
instead
automatic rein-
case in which Chief Justice Vanderbilt
year
the end of
she will
statement
joined.
said,
In
investigated
apply anew—be
society governed
regular
“We
arе a
bar examination. Cir-
take
law,
sitting
integrity
McKinley,
pro
whose
tern on
it is the law-
cuit
yer's special
guard
Court,
role to
voted
disbar-
cham-
private gain.
He
when
the New
became an
Cardozo
officer Mr. Justice
court,
said,
and,
Appeals
itself,
like the
“Member
court
York
agency
privilege
instrument
ship
is a
burdened
the bar
advance
justice.”
Rouss, supra
People
ends of
Matter of
ex rel. Karlin
conditions.
Culkin,
page 84,
[81],
248 N.Y.
116 N.E.
N.E.
N.Y.
appellant
Appendix B ghost, spectre seems still haunting today. people “Notes” Matsuoka’s conspiracy, noted turned next to She conspiracy trial in 1937 there was Sawyer’s Bouslog Mrs. Harriet *16 Sunday, December agreement, plained conspiracy means Bento, said who M. followed Samuel She government conspiracy never has used morning good say to to wanted he Tribune-Herald, case, got when had a when it hasn’t generally pointing enough lumps evidence it to- number reporter Hilo paper’s toward gether says they agreed to some- do correspondent paper’s Honokaa and the thing. government does not sitting side side. who were * * * says advocated overthrow but be- Sawyer Hall. preceded Jack W. She agreed they conspiracy to to. means 11:30 gan ended speaking 11 m. and at a. charge agreeing people do lot m. a. something you have never done. order of on what said *17 government silly, why in it. it’s jurors jury before went box. into government your money does the use put jail people and mine to in enough say person to it’s is a commu- thoughts goose. cook his nist to says government agree- there was an government barrage has carried on a violate the smith ment to act which propaganda many years and ex- passed in 1940. then the defendants pects people jury hysteria in the to have agreed passed, it to violate before it was just hearing enough about communism is said he was at a crouch ing communist meet- jail, said has a friend worked 1941 saw people five six family for sears roebuck and has of three there, it was the first time seen he’d wife, childrеn and he made a terrible them, he was but satisfied when he came time, mistake one in 1941 he lived in years to honolulu Koji later that one was hall, jack same house as the fbi wanted Ariyoshi. urged try she audience testify, jack him to he i said feel hall is they years ago. did recall what said known, people of the finest one apparently i have details, god she can’t recall knows this, fbi didn’t like so memory good, yet they one has they suggested to sears and roebuck to testimony. kind of use this him cooperate fire because he wouldn’t government.
with the they why? because anything will do convict, everything necessary to differently they witnesses some of testified fired so he wasn’t went to the Los they Angeles Chicago previously, from what testified officesof sears and government deliberately knows this but and convinced them roebuck he had to be fired, goes say and have things ahead him he was fired because he refused convict, informer, order to pigeon mentioned gov- stool izuka in be a testimony, something gets away trial
reinecke said making with ernment saying they izuka people didn’t fear know the do don’t as it only said come when the and lose there’ll they’ll red time branded be wants thing your keep from do children jobs. their read, learning will how to then not thing trial a fair no such there’s destroyed unions will freedom be so case, evidence all rules act a smith action, thoughts dark there’ll be government scrapped or the have to ages thought people when control make a can’t case. freely speak won’t able to taverns corpus move habeas referred to her places. and other (Palakiki v. palakiko majors case — urged go explain audience to out 75). Harper, Cir., F.2d thing is. act what a vicious the smith people years are tried for books written ago. report with came said a woman Appendix C he beat stevens she heard vernon them, she testi- of one confession out Sawyer Explanation The supreme to let refused fied but the Judge Wiig District stevens evidence in because vernon Transcript Proceed- Extract deny here and had no chance was not ings Fujimoto. in United States v. this, a federal the same situation sitting permits judge on a federal bench Afternoon Session—December ago. years testify about 27 crouch to 16, 1952 then, previous case yet death of one. was the life and they permit m.) tell what (The p. a witness here convened at 1:15 years was five was said when a defendant absent.) (Jury old. Bouslog, Court: Mrs. when
you practice in ? admitted to this Court case, Bouslog: year your no fair trial there’s In along, they go rules make Honor. act case in 1949 of the smith the first you Do Court: remember *18 york leaders, top Dennis v. United new date? States, 341 U.S. 71 S.Ct. Bouslog: certificate, your Mrs. attorneys they contended L.Ed. hangs my office, Honor, in but I believe it say they have what should in I was some time December in 1941. permitted 1924. medina from them did passed I ex- was notified that had the bar say what defendants themselves Territory, recall, I amination in government from 1934 on. did I after Pearl So believe it Harbor. make a case it tells what can’t part year of December in the latter they they did so widened the rules and years ago, people in- other did what tell cluding including I everything The Court: have before me a news- the kitchen clipping paper from the Honolulu Star sink. Yesterday in which Bulletin of afternoon stop we trial the smith in its unless quote purports to made it statements crime, here there will be a new tracks 14, 1952, Honokaa, you December on charged knowing people will with meeting. you any- Hawaii, a Do have books, included ideas. thing say newspaper report as to the ? Bouslog: indeed, your I do Hon- say angeles I I want to that welcome the los or. opportunity trial which mentioned to state to Court the was no evidence sub- said there that someone meeting, persons what was said at that had instructed stance not to someone your Honor and I assure that the ex- books. some read goes trying cerpts will not from the context cution wrested Smith Act reading case, excerpts the context from reflect the substance books that words, many years speech. to were Of the attributed written before the de- that clearly quotes, spoke I did fendants in I I recall born. me this thing say, fair is no the difference Act ‘There such between Smith explained, ordinary I case and in a case.’ criminal case in trial your Honor, Smith Act person state- which a the reason tried what he has done, said, ideas reason, not for I what he ment. The thinks —what explained conspiracy Act his mind. I on in a Smith and books are case, what a trial years propaganda which is and showed can used how it charge agreeing group persons preceded Smith enforcement of the the by prosecution prove do both Government what the cannot any single press an at- created such individual Commercial has did. very hysteria mosphere word your respect, my Honor, In this ex- deadly become such “Communism” has planation was drawn the criticism impossible for is almost label that jurors Judges conspira- of the Senior Circuit cy charges they put out of minds their your which we cited to Honor court- read heard have outside the brief in quoted filed indeed Honor, substance, your I said room. In language respect than no more to this statement calling conspiracy itself Court on it a file defense counsel said in motion dragnet. for a transfer before Court My meeting remarks at at Ho- substance, place no of trial. In said concerning nokaa the rules of evidence Black and more than what Justices Douglas, dissenting, were directed towards the conduct of the concerning prosecuting attorneys in Smith Act (Dennis v. in the Dennis case Smith Act cases, they conspiracy charge how use a States, 494, 71 United S.Ct. U.S. very permits for the reason them 1137). 95 L.Ed. to introduce evidence that would not be than The balance of words other ordinary admissible under the criminal just quoted I re- the ones charge. —which hаving clearly said—the balance call conspiracy I said Smith Act quotes, to me in words attributed prosecution gone beyond cases the I did not are so torn either scope evidence, of the rules of even in wholly my as to' from context distort conspiracy My other cases. remarks Apparently whole. Mr. as a were more in substance than has been try my satisfied clients Walsh stated memorandum parts paragraphs ripped sentences counsel, filed defense submitted in *19 try but he desires to me on from context support of motion to strike entire sentences, portions of and sentences testimony of the witness Crouch. In extracted in from context words your fact, Honor, my objective in the they This, sure, were said. I am speech at Honokaa in ordi- was to state permit. this Court will not that nary language laymen that would under- extemporaneous, My speech was ex- stand content the decisions of your speech, temporaneous in that Honor. I courts cited brief. no notes to the words or have exact my speech second half of —after Upon learning, full content. how- generally concerning speaking the tactics morning colleagues my ever, this prosecution in the Smith Act cases going your give Honor was to me an that Smith Act—was and the devoted a dis- opportunity to state the substance of cussion the evidence on which make, I which did I dictated remarks my seeking prosecution this case is to con- secretary speech. the substance of and Jack Hall the other vict six defend- my began by explaining I remarks in this case. used illustra- ants several I One, prose- testimony I used Act and tions. the Smith how the Paul riding ob- the Rus- he that he had struck Palakiko before horses Crouch gen- talking plains Russian tained his on the technical to a statement sian ground defend- laid be- pointed was I out the no foundation in 1927. that eral Ter- possibly cause cross-exam- Vernal Stevens was out couldn’t ants first, ritory. general, because the Russian ined years, many had been dead he pointed out I Yet in Smith Act cases prob- second, even if he weren’t it prosecution puts the tify tes- on witnesses to Russian. ably impossible he is be since things done were said and that Paul that pointed out at the time I persons only third not on the mainland Fujimoto Russia, Eileen was Crouch the United other countries States but in aged Hall, years five old and Jack halfway world, even around the high thirteen, just ready start though know, here do defendants IYet in Southern California. school any have never had with the contact testimony plotting Crouch’s of his persons third mentioned and never heard to com- Armed Forces and infiltrate the of them before this trial. sabotage espionage while mit acts say- my my closed case or being year in Russia ing being created, that a new crime is against case. used the defendants in reading. from, quoted exactly crime of used from Another that I illustration my recollection, to the best of from the Henry testimony of trial was closing argument jury Johnson time whо testified that some prosecution Angeles case, in in the Los duffle 1945 or 1946 he Hall a showed Jack prosecution which the said the defend- bag and him Marxist told it contained people read, read, read, ants asked although That, ad- literature. Johnson any people that never at time told he mitted on that cross-examination anything. not to if read I said that didn’t tell Jack Hall the duffle what books prosecutions continue, Smith Act bag contained, in the fact effect thing will how safe to know bag Hall Jack had seen the duffle prosecu- read. And Smith Act introducing as a used basis for numerous tions, stopped, thought unless will lead to in evidence books which Johnson testified control. I said further the Smith bag the duffle contained. stopped can here in Hawaii Another illustration I used was that enough began people to understand the testimony of Ichiro Izuka who danger prosecution. of such testified under oath the Reinecke case see, my can As remarks were didn’t learn until after he left directed towards conduct of the Party Communist that it advocated the prosecution and were not directed violence, use of force and there- By the Court. I do not towards testimony fore was of value to the mean to that the defense counsel in prosecution prove charged the crime way position recede from the against these defendants but that never- in the brief filed was taken connection prosecution theless the him called testimony, with the Crouch in which we him testify used in this ease to to mat- showing we have cited believe authorities completely ters at variance with his *20 your Honor had admitted that evidence testimony prior sworn cases. admissible which is not even in ordi- the To illustrate the difference between nary conspiracy case. application the of the rules of evidence ordinary your Honor, feel, cases, cases and in I that when Smith Act I you told how the will the Ter- note in some Court of words—and cases ritory single they put Hawaii are words—are refused in the Pala- back into Majors speech kiko of the whole which the context involved that question your permit life and clear to Honor death to that there the must testimony contempt Hughes Mrs. Frances of an was no Court involved in admission speech Detective and that the Vernal Stevens criticism was di- primarily prosecu- of the prosecution to the conduct reeted conduct of to the course, And, of tion in a Smith case. Act cases. Smith Act people prominent more learned and more down, I you The sit Before Court: things stronger I than have said much say you, you that did would like meeting ask to concerning prosecu- techniques trial, things go on that beginning all cases tion in Smith Act referring trial, unbelieva- to that pend- with the case and Dennis ble and-—(cid:127) ing context And remarks in cases. those Honor, your Bouslog: No, that Mrs. generally were directed to Smith me, I believe. to attributed not even Only specific illustrations cases. me That, to I аttributed was not believe factually what from to this trial related newspaper even in account. goes inon this courtroom. say you some The Did that Court: Bouslog, Well, amI The Court: Mrs. things shocking rather horrible your explanations to not satisfied with going trial ? on in this requires I matter Court. think this Bouslog: recollection I no Mrs. have investigation. going in- I am to further undertake I did of that statement. Attorney a fur- U. S. to make struct the testimony explain exact in factual terms investigation if ther of this matter and case, place of which in this that has taken provisions Rule he finds under gave have I I the four illustrations 42(b) U.S.C.A.], Notice and Order [18 your no recollec- Honor. I have cited to issue, will Show Cause should then he tion words. those do so. you say that all rules Did Court: Bouslog: I Mrs. will to the Court scrapped have of evidence to be investiga- any happy I am have that government can’t a case make per- I made of I said. tion haps think go along, up rules make it is rather unfortunate effect? words prosecution the Court refers it to the criticizing Bouslog: No, your in the lex- whose conduct I was
Mrs. Honor. my impartial person. plained case rather an than in the substance laymen paraphrased I for the Well, respect, Mrs. The Court: with the rules evidence contrasted Bouslog, you feel that is there prosecu- kind of offered evidence part partiality Attor- U. S. cases, all of which tion Smith Act ney, I have reluctance whatsoever your set in the memorandum to forth independent at- matter refer the torney. Honor in which it shown that you I think should know that great prosecution great seeks every- throughout —that I have this trial done leeway ordinary evi- rules of thing I assure the de- could to dence. a fair for the fendants trial. Counsel naturally disagreed defendants You realize that Court: this trial rulings my me on evidence. on some pending? is still natural. Or the admission That Bouslog: Yes, your Mrs. Honor. every in evidence. But in of documents pending And The Court: has been now come matter that has since the other ? for six weeks selected, jury the matter time the Bouslog: your Yes, Mrs. Honor. giving play fair defendants you The Court: That are counsel of doubt, I have con- almost benefit ? record very sistently surprising done It is so. Bouslog: your Yes, article news- read this Honor. And me to counsel, your may say, your Honor, paper associate after one of think there *21 Wirin, a occasion week or so one word I said Ho- took what Mr. is during any my ago way, any way chambers in to that is to come nokaa any contempt had been advised Court, and state that for this shows recess him my directed, said, ask the source heard —I didn’t remarks were as I Wiig Judge agree court, dissenting judge, with one to his information —that give proposition. fair this the defendants trial, me to and he wanted to state process law, Due sub both opinion the defend- in his that time that procedural, and stantive accorded. Again, receiving ants were a fair trial. opinion Judge As the CHAMBERS everything I Bouslog, I done Mrs. shows, the Hawaii filed Bar Association prevent outside to could trial this Suрreme with the of Hawaii Court entering pre- into influences against complaint Bouslog Harriet Saw matters and the sentation of evidence yer, charges pro which contained two go jury. when So this to fessional misconduct. Mrs. Saw Since upon decided in their hands it will be yer duly by regularly and admitted place and has taken the evidence what Supreme Court, was an officer here the courtroom. responsible that court for al to it publication yesterday after- This leged professional In ac misconduct. paper I have seen noon’s first that cordance with its own Rule contrary hoped I had to what tribunal referred the cause to its Com for, hoped I had would continue Legal mittee on Ethics and Unauthorized throughout factual re- trial. The investigation, Practice for which re porting principal Honolulu or the quired the Bar Association furnish a Bulle- Advertiser and the Honolulu Star particulars. bill of The Committee held been, think, I have tin had I fair. hearing several sessions of the and filed or other noticed no editorial comment report containing findings sustaining any way have comments which would in charges. Supreme The issued Court giving upon fair trial these an effect cause, an order to show which was direct great And caused a defendants. upon Sawyer, ed to and served Mrs. my deal concern when was called to Thereupon, filed a return thereto. yesterday attention Mr. Walsh after- Supreme hearing held a Court de novo. nothing happen will noon. trust Sawyer right Mrs. was accorded the from here which will affect this trial appear hearing person. did at that any way. you please call Will given opportunity She was jury? heard, advantage and took full of the oc your understand, Sawyer given Am I Mr. Barlow: casion. going Honor, represented by I am ahead to be with the counsel. Eminent investigation reputa ? able counsel of unblemished vigorously represent did in tion fact her.
The Court: Yes. whole, minimum, The record as a aat Judge BARNES, (concurring, Circuit only adequate shows that there was not concurring opinion Judges in whose but substantial evidence to sustain a HEALY, FEE and CHAMBERS con- judgment cancelling her license. Fur- cur). thermore, irrespective dissents, clearly convincing believe the evidence agree CHAMBERS in judgment sustain the sufficient be- holding respondent’s con- yond a reasonable doubt. grossly improper. duct juris- Unquestionably, suspended this Court has Court then Sawyer from cause where constitution- Mrs. in this exercise diction of her objections office, upon are raised which it a dis- had conferred al “during good behavior,” proceeding, ques- professional because barment according misconduct, process due of law ascertained tion declared always lawyer adequate convincing involved. There- evidence authority judgment fore, has the ex- that tribunal after opportunity panel proceedings. afforded which she was to be amine heard personally counsel. cause and both now the whole heard first *22 212 charged Sawyer ings therein; is that Mrs. Hawaii Supreme of Court trial; fair III “this” was organized not Article under a court evidentiary rulings Judge Wiig’s mat- Constitution, rather but Federal of the Judge Wiig, unfair; with of ters were 3, 2 IV, clause section under Article government prosecutors, “make power Con of instrument.1 they go along;” in this abrogate appellate rules as gress restrict or to were rules of evidence param is a tribunal review from such this “scrapped;” conduct appel doubt whether There is ount.2 to crime that Smith trial was a III Act organized Article under late courts charges be stopped. can such How re constitutionally with burdened can be being “devoid characterized as or functions administrative view of Wiig Court,” upon Judge or attack regulations housekeeping determina of evi- even a constitute “not scintilla legislatively tribun controlled tion of a integrity upon dence” attack al.3 Judge Judge my brother, Wiig, does as Congress where Even in cases my compre- POPE, beyond powers of is territorial permitted review has hension. Courts, appellate courts Judge charged Whether such acts system judicial proceed extreme Wiig “shocking horrible” customs, practices or local where caution Sawyer point. chose beside the Mrs. cus nuances influences or the subtle characterize them such. may present.4The tomary local law Sawyer re- conclude that Mrs. To employed should be same caution ferring generally, and cases to Smith Act parallel if local custom situation cases,” “all Smith legislative licen dictated that its tribunal referring specifically one case course tiate should not obstruct the my trial, mind is to nonsense. then justice in another court. clearly attorney under- Her at the trial original
Sawyer
stop
necessary adjunct
the Smith freedom
said: “Unless we
is a
to the in-
telligent
orderly
will
here there
trial in its tracks
and
of all
enforcement
[Act]
litigants’
Sawyer
including
rights,
then
crime.”
a new
constitutional
referring
disciplined attorney rep-
those
and there
to but
Smith
clients the
case;
give
attorney
then before
Smith Act case
resents.
need not
Judge Wiig. Any
interpretation
complete
prefers
other
freedom if he
not to
reality
act as
renders
an officer
flies in
face of
court
the trial
English language
act,
purports
a case.
not understandable.
When he
to so
through preference
whether
or in re-
urged
point
by
POPE that
sponse
duty,
unless he
is to
bound
“Judge Wiig
upon
did
Crouch’s
not rule
by
gov-
the reasonable rules of the court
long
testimony
speech,”
until
after
erning
therein,
all cases tried
he advo-
compound
offense
seems to me to
anarchy
cates that
should rule.
If the
rather than excuse it.
court
ruling
admissibility,
yet
made
concur
its
in the affirmance.
why
even more reason existed
Mrs. Saw
POPE,
Judge,
Circuit
yer
attempt
whom
should
to influence
HAMLEY,
J.,
inflaming
(dissenting).
by
C.
concurs
subsequent
court’s
order
dur
her audience outside the courtroom
very
I have a
view of
different
ing
progress. This was a
the trial’s
the facts
majority
this
case. The
by jury
criminal
pounded
im
accept
trial
who were not
the conclusion of the Hawaii court
mingle
permitted
but were
appellant “engaged
participated
community
with the
when
court
in a
upon
wilful oral attack
the adminis-
customary
not in session.
media
Even
justice
by
tration of
in and
the said Unit-
of communication are restricted to “fair
ed States District Court for the District
reporting
proceedings.
comment” in
by
of Hawaii and
direct statement and
implication impugned
integrity
To me this
involves
more
judge presiding
therein and
speech”
“freedom of
in its constitutional
* * * ”1
pending case,
I am
sense than do the rules of
court
nothing
satisfied that there is
in the rec-
permit
judge
attorney
require
support
ord to
that statement.
I think
(whether
represents
de-
Smith Act
this is one
peculiarly
case in which it is
government
fendants or
litigant)
other
important
that we scrutinize with care
courtroom,
to take his seat in a
proof
as
happen.
what did
and to refrain from further statement.
acting
attorney,
during
An
as such
appellant
If
precise
used the
words and
case,
subject
trial
must be
certain
made the exact statements that those who
may
upon
say
against
restrictions
what he
or do.
did,
testified
her
she
there is
To that extent he has
lost
free-
certain
a serious
question
and substantial
as to
speech,
dom of
and a certain freedom of
judgment
whether the
below does not
rights
conduct. To that extent such loss of
her
violate
under the
Amend-
First
paragraph
1. The
in full reads as follows:
trict Court
the District
of Hawaii
“Upon
finding
by
its
and conclusion
implica-
direct
statement
stated,
supra,
impugned
this court deems
integrity
tion
judge
saying
presiding
did
what she
in her
to a
pending
therein and in the said
public gathering
Ilonokaa, Hawaii,
case,
within the territorial
boundaries of
aforesaid,
Territory
December
when
Hawaii,
and thus tended
pending
disrespect
then
the United
to also create
for the
courts
justice
judicial
States District Court
for the District of
generally,
officers
Act,
Hawaii a
obligations
case under
the Smith
to-
contra to the
and duties as-
wit,
the case entitled
sumed,
‘United
license,
States of
as incident
to the
America, Plaintiff,
Kazuyuki
by every person
vs. Charles
to whom a license
als.,
Fujimoto,
Defendants,’
being
et
has or shall have been issued
10,495
court,
practice
criminal number
in said
court
in the courts of the
engaged
participated
Territory
in a wilful oral
of Hawaii.
She has
thus
justice
attack
the administration
committed what
considers
gross
in and
the said United States Dis-
misconduct.”
*24
by dis
could
frustrated
ordinary
is
federal law
be
It
case.
ment. This
no
2
finding.”
de-
torted fact
of
a record
the
of one
has
case
rep-
crime,
fending persons
of
accused of
the
of
decisions
power to review
Our
unions,
resenting
of
unpopular
labor
substan
Hawaii
Supreme
of
Court
going
appear for Smith
even
as to
to far
by the
tially
exercised
as that
same
the
aas
I cannot overlook
Act defendants.
judge
States
Supreme
of the United
Court
ordinary
citizen
an
what I know as
highest,
rеviewing
of the
final decisions
every
else, that
in common with
since
least ever
At
courts
states.3
many persons
would
one who
think that
H.
Ry.
C.
City
Co. v.
Southern
Kansas
appellant
handle such
as has the
cases
573, 32
Co.,
U.S.
223
Albers Commission
ought
general
just on
to be disbarred
has
556,
Court
316,
L.Ed.
56
S.Ct.
principles.
Supreme
when
And
the
“In cases
rule as follows:
the
stated
Court of
a conclusion
Hawaii arrives at
courts
brought
from state
court
to this
language
quoted,
couched in the
ground
federal
review,
on the
for
right
any
counterpart
word
which finds
no
been
court has
in the state
set
record,
it
statement in the
consider
state
wrongly denied,
the
which
and in
my duty
inquire
with care whether
finding
put
aon
its decision
has
court
really represents
such
the
statement
right
has
federal
the asserted
facts of the case.
fact,
point
waived'
or has been
basis
exami-
limited in our
we are not
court,
That
of its.
lost,
as an incident
this
plain
the Su-
since
of the facts is
nation
preme
federal
power
to determine whether
testimony
go-
may
denied,
heard no
wrongly
Court
right has been
solely upon
written
finding
heard
whether it
see
behind
own evaluation
and “made its
support.
record
If
rule
substantial
without
report
by
“unprejudiced
always
thereof”
otherwise,
almost
duty,
court,
legal
Our
committee.”
ethics
power of a
within the
state
here.,
court,
for
facts
federal
find the
as a
prevent
practically to
a review
determining
process
ourselves
cited)
(cases
in-
Another class
cases
appellant’s
a federal
claim of
finding-
whether
will review the
court
Constitution,
has been
under the
is when the-
the court
to the facts
by
erroneous conclusions
frustrated
findings
law and
of fact
conclusion of
recognized
Court,
Territorial
intermingled
necessary,
make
as to
so
Supreme
of the United States.
Court
pass upon
question to-
in order to
analyze
reviewing
Court,
a state court
when
That
Corrigan,
facts.” Truax
v.
126,
decision under circumstances similar
312, 324-325,
124,
42
257 U.S.
S.Ct.
finding
here,
the facts
those
insists
L.Ed. 254. This rule has been an
66
right turns,
subsequent
for
on numerous
occas
constitutional
nounced
which the
People
everyday practice
in Stein v.
is an
the-
As stated
ions.4 It
itself.
156, 181,
York,
review,
Supreme Court,
73
346 U.S.
of New
state-
State
1077, 1091,
court decisions. Thus in
97
1522: “Of
Schware v.
L.Ed.
S.Ct.
course,
Examiners,
232,
Bar
Board of
page 239,
353
itself to
U.S.
at
Court cannot allow
752,
page
756,
77 S.Ct.
1
completely
bound
state
796,
2d
L.Ed.
where Sehware claimed
essential to
ha-
issue
determination
right.
right,
denied a
had been
constitutional
of federal
else
of a claim
decision
1021,
1019,
history
prior
which examines the
determination of a
State
2. “But the
jurisdictional
same
Act.
the United States Constitu-
under
claim
foreclose consideration of
cannot
tion
Such,
example,
Wagon
for
as Milk
4.
Driv
claim, else
State court would
such
Dairies,
Inc.,
v. Meadowmoor
Union
ers
Congress, by
which the
final
293,
552,
287,
61 S.Ct.
U.S.
85 L.
312
provided
1867,
it should
836;
Kansas,
and Fiske v. State of
Ed.
Allen,
443,
Brown v.
344 U.S.
have.”
655,
380, 385, 47 S.Ct.
274 U.S.
L.Ed.
her audience had
of
to vilification of
been,
men who have
or
saying,
are, prominent
state,
she was
what
it cannot be
in church or
Fujimoto
States,
Cir., 1958,
11.
are collected
7
The cases
At
C.J.S.
v. United
9
torney
33, pp.
any rate,
§
Client
784-785.
221
explicit
people
scope
mand
language,
the
of
broadest
But the
false statement.
even to
light
iiberty-
of a
read in the context
in the
have ordained
this nation
of
Bridges
loving society,
probabil
will allow.”
v.
that,
spite
history,
of
California, supra,
U.S. at
abuses,
State of
314
ity
these liberties
of excesses
page 263,
page
In
long
62
its
en
at
are,
view,
S.Ct.
essential to
scope
line,
broad
it does not
lightened
draws
opinion
conduct
it
lawyers
lawyers,
exclude
represent
or even
part
of a democr
the
the
of
citizens
persons
or
claimed
acy.”14
ILWU
to be Communists.
speech
It
absolute.
Freedom
of
not
,,
may
,,
,
,
facts show
be limited
.
where
T
In thus
,
,
„
making
T,
.
...
an attack
the De-
„
,
,
„,
„,,
danger.
present
„
most
But
elear and
r.T
, partment
,
„
,
,
Justice,—
the Government
%
„
speech
assuredly
does
freedom of
n —tor
,
,,
„
,
prose-
,
..
«
which was
manner m
it
,.
true,
.
speech
or
mean
freedom
,
cutmg
,,
T,
„
cases, appellant
.
Smith
listed
.,
„
,
sound,
It means freedom
or reasonable.
.
...
,
,
,,
,
„
many
grievance.
.
items of
criticized
She
„
,
speech, period.
,,
,
,,
noth-
Freedom means
.
.
of
mg
*
,
„
,,
technique;17
„
conspiracy
«
ot
use
,
freedom for
unless it includes
those
,
agents
,
.
.
of B1
she criticized the use of
generally,
speech
,
,
,
..
hate.16 Freedom
»
T
„
.,
m
...
.
and of Crouch and Johnson
, „
„
.
tor
.
freedom
delusion unless it means
....
..
/
Particular;
she criticized the use
express
we detest.
others
what
barrage
,
propaganda
Government
s
Though
anger,
people
“stirred
charged
pressuring
brought
public dispute,
invited
or
^1
Sears
fire a man because
Roebuck
unrest,” punishment
to_
condition of
making
against
testify
world n°t
Amendment.
violates the First
charged
pro
defendants.
that the
She
City Chicago,
Terminiello v.
337 U.S.
anything
every
sen
“do
5,
1,
S.Ct.
L.Ed.
Giing
convict”;
necessary
that “wit
“For
the First Amendment does not
testify
tells
the Government
nesses
any
speak equivocally.
prohibits
law
It
urged her
to tell
audience
to”. She
them
‘abridging
speech,
freedom of
thing”
is.
the Smith Act
vicious
press.’
“what a
must
taken as a com-
It
against
people
Minnesota,
excite
hatred
14. In Near v. State of
283 U.S.
pernicious
unjust
625,
718,
meas-
697,
page
page
the authors
ures,
at
at
S.Ct.
against
uniformly
enforced
632,
been
1357,
Hughes
75 L.Ed.
Chief Justice
might
press,
the United States
point by quoting
made
same
languishing
day
at
under
have been
degree
insep
Madison. “Some
of abuse is
sickly
of a
Confedcra-
infirmities
proper
everything,
arable from the
use of
Might they not, possibly, bo miser-
tion?
and in no instance is this more true than
foreign
colonies, groaning under a
press.
accordingly
able
in that of the
It
lias
yoke
?”
States,
practice
been
decided
is better
to leave
few of its
5
1
United
,
branches
,
,
,
to
States,
,
.
.
.
luxuriant
249 U.S.
.
v.
Schenck
4
noxious
growth,
their
7
,
249,
247,
52,
ago.”
integrity
judge,
no
on
attack
of
the
the
collapses. Stripped
whole
the
down
reporter’s
newspaper
the
As
read
judgment
to its actual facts
the
the
of
speech
me
notes of
it seems
Hawaii
more
court means no
no less
subject
prime
speech was
of her
witnesses,
than that for
partment
De
such an attack on the
Crouch, and other Government
Justice,
attorney may
Day
She
her Honolulu Labor
alluded to
disciplined by suspension
practice,
pro-
speech which she had discussed
True,
got
the court below never
down to
witnesses,
fessional
former Communists
stating
proposition
simple
in those
paid by
did
She
now
the Government.
faulty findings
terms.
Its
were masked
identify
The
Crouch.18
not otherwise
generalities
upon
with
like “attack
complaints
appellant’s principal
faсt that
justice”,
administration of
and “disre
his
related
use of Crouch and
to the
spect
Surely
for the
no one
courts.”
testimony
testimony,
similar
of oth-
argues
lawyer may
that a
be disbarred
sharpens
witnesses,
up
point
er
f°r
upon
Department
an attack
Wiig.
Judge
The
there was
attack
Justice.
Fujimoto
here and is
record in the
case is
speech
Inv.
available
us.
freedom of
Latta v. Western
of the First
Co., Cir.,
99, 103;
peculiarly
United Amendment
9
173
is a
F.2d
American
concept.
Pink,
203,
shown,20
States v.
216.
Historians
U.S.
Wiig
upon
did
rule
testi-
Court has
Crouch’s
held that
mony
long
indeed,
speech,
not,
amendment
after
like
until
some other
provisions
nearly
Then,
Rights,
Bill
three months later.
a mere
adoption
10,
deeply
Eng
March
of rules
ruled on motions
rooted
testimony
lish common
strike
law
this and other
the time of
the Con
subject
purpose
ratifying
stitution.
“No
had been
received
motion to
Rights
testimony
Bill
securing
(Some
strike.
Crouch’s
clearer than that of
along
people
then
stricken
with
of some
United
greater
others.)19
religion,
States much
freedom of
expression, assembly,
petition
than
fairly
One
find
cannot
in this
of Great Britain had ever en
People
any
upon
integrity of
attack
joyed.” Bridges
California,
v. State of
judge.
thing
com-
Proof
such
supra,
page
314 U.S.
62 S.Ct. at
wanting.
pletely
There is not a scintilla
page 194.21
effect,'
of evidence to that
less the
—far
convincing
“clear and
amendment
evidence” which
And this
is not
first
requires.
importance
such a case
in number but first
18. He was
Crouch
the case
the Government briefs
U.S.
i
lead-ofc witness.
Marxism-Leninism. The briefs
a
from November
and
pliasize the
Crouch
described
versive Activities Control
Manning
ernment’s case
depended for this
,
The record
, ,
,
“three
^
.
115, 76 S.Ct.
tvt
.
expert
was the
ana his
testimony
,
was based
Johnson and
perjurious
theory by
importance
Communist
on the
..
was built
Paul
i
testimony.
witness on whom
,
t-t
He was on
covers
-
through
shows that the
[*]
*32
proof.
,
Communist Revolu-
witnesses.”
Crouch,
m
n
attached to
_
Matusow,
,
that case show
^
Party
largely
,,
tvt
November
,
He testified
±
He
prosecution.
Board,
L.Ed.
^
pages.
, ,
j.,
the,
theory
was the
v. Sub
around
proof
stand
were
Gov-
i
~
.
em-
As
,
,
.
’
21 The Court
20. Zechariah
_
was
International
filtration of the armies
264,
225 danger contempt facts, or- very seem which these voided different reference to entirely applicable judg- ders would court’s T confess that make the Hawaii here: prohibited ment in restriction evidence this case a or in the in all this I cannot find speech speech ex- af- on free anything have even if the case that fortitude, supposi- pressly judge in the included the reasonable mind of fected a anything no titious manner I indicated. take it less can find still could will conduct which administration contend that that obstructed validly may punished contempt possibly can not justice in that sense ” disciplined by suspension give nevertheless be words.’ to those practice, from applied Penne in same The test also The mentioned suggestion three cases last 331, Florida, kamp U.S. 328 State of v. completely dispose of that 348, 1029, 1295 90 L.Ed. 66 S.Ct. may proceedings in attack not be made pending 376, Craig 67 Harney, v. 331 U.S. in court a case. The In the S.Ct. L.Ed. length. question Court dealt with that case, Court, speaking of the latter course, possibility Of of clear and power a on the Constitutional limits danger functioning present of a to the contempt, punish said: court justice speech court or from certain strong intemperate language, “This was publication di could occur if were language, and, assume, an unfair we pending proceedings.23 rected to But the judge may hold criticism. But a not present of this case no such situa contempt publish one ‘who ventures ffcts tion. That a town a anything unpop make him that tends to ’ population,24 * * * island most distant him. The ular or to belittle posed present from Honolulu a clear and language vehemence of used not danger justice to the administration pun power alone the measure of the inconceivable, Judge Wiig’s court, contempt. ish for The kin- fires which it finding argument There is neither nor imminent, dies not must constitute here, to that effect made merely likely a justice. threat to the administra danger appellant As for the circumstance tion of The must not pending case, probable; was counsel in that wholly this is remote or even it must imme * * * diately imperil. irrelevant. not the law were But If States, contempt protec Cammer v. United 350 U.S. is not made for the judges appel- may S.Ct. L.Ed. tion of be sensitive to being against proceeded Judges public opinion. lant the winds supposed fortitude, United States District for Hawaii Court to be men of able to contempt (she not, hardy Conceivably for court thrive in a climate. says be), campaign managed and Cammer a could not then could be so and so might particular her connection with meaning. have aimed at the sensibilities of a judge significance pending But that it has the matter before him here even the Hawaii recognized, as episodes court seems to have to cross the forbidden line. But the for this circumstance is here do not fall in category. even mentioned in its conclusion.25 Nor can we assume that judge trial anot man of fortitude.” Finally, suggestion what of the newspaper layman may significance a cases, a while criti- of these three officers, prosecuting (Bridges, Pennekamp, Harney) cize and attack judicial officers,yet although they courts contempt pro- consti- dealt speech protections ceedings, free tutional do the basis the decision in each limitation, by lawyer? to such extend actions ease I do was the constitutional lawyer refer to utterances of present not here same absence of clear Atlas, ed., language quoted Craig 24. Hammond’s World 23. The above population gives Honokaa’s as 1021. supra, “conceivably” Harney, is that campaign pending, quoted in a matter could This is the conclusion foot- 1, supra. the forbidden line.” “cross note 22 6 public purpose. proceed judge’s person serves ings, especially (a) threaten proceedings, charge criminal reputation,26 (b) or knowingly *35 rights, impact pow- have an on fundamental its judge misused or has people is essential informed case,27 (c), assert It that particular or ers in a rights. Lawyers equipped to politically such corrupt judge or is Judge They know, here, discuss them. is such There no motivated.28 Wiig “Liberty Judge Learned Hand lies in Actually has said: as I shown. women; it the hearts men and criticized, when less at- much even was not there, law, constitution, dies no no no tacked. 29 court can save it.” Professor Thomas criticism, was respect such But in saying, quoted Reed Powell has been suggestion been ever made, has here Washington Nine men in hold a cannot any lawyer’s less criticism a made protected nation betray.”30 to ideals which it determined layman by a made than when way I can see no in which it everything Indeed, newspaper. a be held that a President of a Bar Associ authoritatively has been may things per ati°n discuss these but that the to the effect Amendment is First bolding appellant’s may son not. views granted rights are universal striking This case bears a resemblance all-covering. Amendment “For the First to the threatened in 1938 prohibits disbarment speak equivocally. It does not any lawyer, Lamb, one Edward ‘abridging a Cleveland freedom law lawyer”, said to have been a “labor press.’ taken speech, must be It or of scope While the case came trial and never of the broadest as a command explicit part reported, taken language, context read H. the then Solicitor General society, Robert liberty-loving allow.” will supra, can California, Jackson be found reflected a later Bridges v. State page decision of the Court which page 62 S.Ct. 314 U.S. at I shall hereafter allude—a decision 194. during importance Lamb, ,, , , , , here. the trial day when would be a sad think cag6) courtr0om, of a rectly in the said di- lawyer any less has held court right „We tQ judge; hijacked were ^ Act, the Smith indictments, criticize thig through day yesterday; court alI pro- conspiracy or of use of j j nQW yQU wm teU don>t intend witnesses, or the results fessional hijacked day today» judge cases, m Yates and Dennis decisions havg might punighed contempt. him for lawyer any person. For the other than is, ga However; pr0Ceedings did not do persons, the one best all other above Solici_ b ht disbar him. The training equipped such con- discuss Lamb-g aid; General as he ^ came to they may questions. To troversial did not concluded the record Lamb by laymen, law- but not be discussed degerve disbarment. Jackson criti. yers is untenable. going for cized committee. Lamb’s reply wrote a letter in to that criti- He saying of a Rather than public was made cism. When the letter judi lawyer attack current to criticize or dropped. The letter lay the disbarment precisely procedures less that of than cial situation fits the here. Mr. man, for reason belief that there is court Jackson noted an ade- that the lawyer’s speaking out on such matters instrument, not in the written nor Bradley Fisher, L. v. Wall.
26.
carry
effect,
laws enacted to
it into
646.
Ed.
judiciary
even
which inter-
nor
Committeeon Grievances
27.Duke
laws,
prets
enforces the
but in
App.D.C. 284,
her to
the whole
reviewable,
al-
costs—
Shaughnessy
ex
34.
v. United States
rel.
36. “1293. Final decisions of Puerto Rico
Mezei,
227,
625,
Supremo
345 U.S.
73 S.Ct.
Hawaii
Courts.
opinion).
(dissenting
appeals
231
competency.
is with-
below
The court
cit-
The court
“impeach
verdict.”
their
268,
power
discipline appellant
acts
264,
out
Pless,
U.S.
238
McDonald
ed
which,
done in a case in a federal court
1300, which
783, 785, 59 L.Ed.
S.Ct.
courts,
under the
of the federal
decisions
affi-
propriety
use
of the
discussed the
she had a
do.
happened in
jurors
toas
davits
“Both
jury
case stated:
Suppose
That
appellant
room.
much
had done
recognize
it would
things. Suppose
those decisions
even
worse
court,
any
lay
inflexible
down
guilty
contempt
not be safe
been
might
Isserman,
instances
rule because there
The rule established
In re
juror
testimony
could
676,
which such
97 L.Ed.
U.S.
73 S.Ct.
'violating the
6,
1013,
1,
excluded without
not be
99 L.Ed.
U.S.
S.Ct.
”
justice.’ Mattox
plainest principles
3,
lawyer
subject
sus-
is not
that a
140,
States,
13 S.Ct.
146 U.S.
pension
v. United
mere-
or disbarment in
917,
instance
furnishes
ly
36 L.Ed.
he
of con-
because
has been convicted
ju-
held
affidavits
the court
tempt.40
overt
properly used to show
rors were
2106, may
Under Title
direct
§
jury
are accessi-
room which
acts
entry
judgment
appropriate
such
knowledge
jurors.39
of all the
ble to the
miiy
under the circumstances.
just judgment
appropriate or
only
may
jurors’
thus
Since
affidavits
The
here
dismissing
pro
lawyer
trial, a
for new
used on motions
ls.one
g
s.
c
eed
in
juror
may
interview
of course
As is elsewhere apparent, the fore-soing
part
opinion
of this
was written
procuring
purpose
facts and
writing
prior
circulated
affidavits;
un-
would be
otherwise
concurring opinion,
BARNES’
JudSe
appel-
Of course it
obtainable.
sufficiently
I have said above
dis
What
That
made
affidavit.
lant here who
why my
of
expresses.
differs
closes
view the facts
infirmity
subject
affidavit is
to the
from
ming
which he
Assu
hearsay.
so,
Even
would not be
it
inappropriate
normally
the dissenter
writes
informa-
to furnish such
f have
word
to add:
lasf>
might
judge;
pur-
wish to
to the
tion
were,
in,
inquiry
Remmer v.
BARNES
himself. Cf.
think
sue
dissenting
my dissent,
States,
has misun-
350 U.S.
76 S.Ct.
United
my
appellant
version of the facts.
It will
derstood
435. But the
L.Ed.
my
charged
“In
pre-
said:
view there
be noted that
is not
senting
with the offense
be no other conclusion here than
hearsay.
(If
can
an of-
that were
*40
speech
upon
legal
appellant’s
profession
an attack
ranks
fense the
procedure
decimated.)
impro-
Government’s method
would indeed
including
charged
Sawyer’s
priety
then
here is Mrs.
in-
cases
Act
Smith
juror.
Honolulu;
upon
and an
con-
attack
with
Let it be
at
terview
on trial
juror
generally.”
that if
Fuller had sworn
Act
did not
ceded
Smith
suggest
appellant
everything
appellant’s
was not
that was
discussing
affidavit,
testimony
pending
This
case.
is fur-
his
not have
any
plain
I treated
basis for a new trial. But
from the fact that
at
furnished
ther
length,
Bridges,
time I
reference to the
is the
have ever heard
first
Harney
suggested
cases,
attorney may
Pennekamp
the conse-
be sus-
relating
practice
appellant’s
attempting
pended
quences
for
attack
Essentially my point
present
pending
doubtful
case.
evidence of
relevance or
ato
40. “We
39.
affidavits
stance,
^ ^
that
A
The whole
Wigmore,
’
do
n ,
though
by jurors
.
,
subject
,
none,
3d
recall
Ed.,
,
,,
is treated
where
venturing
,
Vol.
.
the use of such
.
previous
8,
,
lawyer
to assert
,
§§
.
length
2352,
has
,
in-
.
.
U.S.
been
opinion
States
See
_
[*]
majority
been convicted
footnote
.
disbarred
or of
...
.
73 S.Ct.
'
OA
at 348 U.S.
.
four Justices
state
0,0
supra,
any
of a
Tt a 679. This
court of the United
merely
contempt.”
mr
ing). join Judges POPE and HAMLEY
dissenting majority to the decision of the
Court. O’Donnell, pro
Roosevelt se. Linden America, UNITED STATES of phil Jr., McNagny, Atty., U. Fort S. Plaintiff-Appellee, Raub, Wayne, Ind., Kenneth C. Martin Hammond, Kinney, Attys., H. Ind., Asst. U. S. O’DONNELL, Linden Defend Roosevelt appellee. ant-Appellant, No. 12299. FINNEGAN, Before SCHNACKEN Judges. HASTINGS, BERG Circuit Appeals States Court United Circuit. Seventh Nov. Judge. SCHNACKENBERG, Circuit
Appellant appealed judg has from a denying ap ment the district court under motion 2255 to vacate § Plant's sentence conviction bank robbery.2 assigned error which merits serious consideration is our ineffective, court-appointed counsel was charge supports by point- Appellant ing represented ap- counsel also out that participated pellant’s wife, who robbery, and bank present father was trial, paid said counsel a *41 defense, fee, assisted counsel in her true, facts, support do not These charge Moreover, of ineffectiveness. support find in the record evidence to charge. , „ ,, . ..... judgment of the district affirmed.
Judgment affirmed. 2113(a) (e). 2. 18 U.S.C.A. 1. § § U.S.C.A. notes testimony into bar associa- as admissible notes were These editor. way. pointing tion’s evidence the other (The notes past recollection. recorded gen- They argue her talk was B.) Appendix The as set forth anything eral, else, couldn’t have been general witnesses from sociation’s specifically did not refer trial to the been to have timid seem audience Judge Wiig Judge Wiig.9 before or to period of a had been course there quoting extensively, Without record their incident and months between say way (but the short not the people im testimony. did not These negative way) this contention substantially Matsuoka, cor peach quote (during statement course meeting largely was him. roborated hearings) Anthony, Mr. J. Garner persons in the I.L.W.U: made represented counsel able her before Sawyer organization Mrs. was committee: great sig closely associated. We find Anthony. say “Mr. I will to the produced she the fact nificance in Committee now—I have read single of the audience member speeches agree and I these eight version. other Of confirm her speakers, implicit conclusion with the Mr. brought only the defend Dodge’s namely question, Wayne testify Hall Jack ant going about what was was talk think it is not to over We behalf. here Act trial in Hono- in the Smith simplify if we the substance fool lulu. Now let’s not ourselves Sawyer testimony and Mrs. of Hall lawyers that. We’re here.” of Honokaa that her event to the context, Anthony says, when Mr. just generalities, shotgun In talk,” referring general. “This Smith attack speech. Honokaa very Generally, two were evasive.
Notes
Notes brothers, filipino conspiracy advocate Honokaa, theater, People’s speech at ex- violence and criminal sindicalism.
Notes agents myth on touched of fbi. really proceeded: The trial is how she they’re supposed special, extra which has been Hall to trial of Jack programs, movies, publiсity radio tell get others. It’s to added six they you wonderful how are. but when ILWU. go see of tax hundreds fraud cases they spend and when most of their time about some rather wanted to tell Said she investigating people’s minds it’s time to things go shocking on and horrible size, down them said she had told cut the trial. gathering, day? a honolulu this to labor agents cops, fbi should be called federal years ago (3 appointed some She was slogan: put away your thoughts has said ago) by years man a court defend a cops, cops push come the here federal money hire own coun- who had people around. charged pimping with sel. He procuring. complaining witness in crouch, paul why difficult to was a woman had been in understand witness, years 1924; territory he who he’s but was here business Hawaii, repented he was once in because so guess claimed she had reformed and why. he testified man had that’s what he but this vicious driven her back did again in 1927. he told what russia he into the business. turned out was told It by generals usually you kept etc. hotel where he had cannot testi- that the fy people you pukas what told on when unlocked. Likened this there is doors for those to no chance be cross in the Smith act. examined. then, years party govern- fujimoto was four old aileen advocated overthrow of got galloping party. over ment he has crouch’s until out what got plains any bearing her. of russia on testify government witnesses what tells government jack hall was 13. but they just portions to. them read goes testimony with two weeks government books like overthrow what crouch did 1927 and between says gov- leave out the rest which czarist mentioning ever defendants. without showing dealt russia. ernment he told infiltration of the armed forces johnson testimony, said he came back plots idea ... it used from san with communist francisco responsible man did that a for what he bag. books and literature a duffie he said—not what someone else did. got said when he Honolulu he told age single one of the defendants was of Jack Hall the names of some of the about, talking jury at the time he’s books, government then the for two going pay attention to days supposed reads from books to have says, Crouch it’s the old but smear. bag. they’re been in the duffel ing not deal- says prosecution crouch did said, jack with what hall on cross (prosecution) say defendants johnson examination not tell did party are communist members so the names of the books but showed same, must done the jack bag. jack hall the duffel so hall vio- government propaganda has been lated the smith act because he saw a years going on for 10 b^g duffel ing with some books on overthrow-
notes
what
Matsuoka
was a talk about
I read the
stood “that this
going
story
(not
newspaper
Act trial here
on in the Smith
thereafter
written)
fool ourselves
in Honolulu. Now let’s not
attack
direct
lawyers
Wiig’s
rul-
here.”
of the trial and his
about that. We’re
conduct
“
* *
*
‘leg
Application
B.
are
392.
also
of L. & W.
1.
the territorial courts
See
4217,
1956,
courts,
Cir.,
created in virtue of the
“based notes
notes gave explanation. text. Previous to this herself talking throughout appellant words, “I show she said: these the exact something Government. The Government did state in substance got enough “when it hasn’t evidence it I said that reminiscent of that. govern lumps together”; a number “the prosecutions un- Smith Act'—continued say ment does advocated overthrow a new lead Act can Smith agreed says control, they to”; govern thought reading “the crime of goes Wiig testimony rnent for two on with quoted, I told —I did”; prose language prose- weeks what crouch “the quoted the exact that”; says eution did crouch Los An- this cutor in the Smith trial going propaganda geles, Government has been the de- where he had government says read, read, on “the was an people did ask fendants agreement act”; people smith as to read, they violate never told telling conflicting stories, witnesses “the anything. I felt And said that read government deliberately repealed this but knows the Smith Act would be goes ahead”; testify “witnesses people Smith soon as understood what the government to”; “then the tells them Act was.” government days for government reads from two No other as to witness testified ; book has carried on reporter’s notes tend But the statement. barrage propaganda”; govern “the they explanation confirm her show gets away making people ment itwith by the reference the remark was followed (cid:127) ^ear When all this is followed Angeles reading made in the Los trial. _ go They just make the rules as confirmatory value those notes along ’, appellant absurd to striking days particularly two since including judge was now nearly speech, after a week be- argues they Appellee . mat that as a ap- typed, fore notes were and when judge ter course it is the who makes pellant known what could not have The trouble with gave precisely them, the same ex- rules- the evidence does not show she made Dlanation to Judfifo"Wiit? "Whothorher improbability such And statement. its advocating explanation re- that she was