*1 SACHER v. UNITED STATES. et al. 201, Term, Argued January 9,
No. Oct. 1950. 1952. Decided 10,
March 1952. *2 With petitioners. for the cause argued L. Ross Paul Dickerson B. Earl Popper, Martin were brief him on the Kenny. W. and Robert the cause argued Perlman General
Solicitor At- Assistant brief were him on the With States. United and Robert L. Stern Mclnerney, Robert torney General Ginnane. W. opinion delivered Jackson Justice
Court. Com- trial, eleven nine months a turbulent
After violating were convicted leaders Party munist at trial verdict, receiving the Act.1 On Smith Rules (a), Fed. Rule under a certificate once filed *3 criminal con- guilty of finding petitioners Proc., Crim. months. to six up terms jail various imposing tempt and excep- the counsel, with defense were Those sentenced his own had elected conduct who tion of defendant one case. action, both judge’s reviewed Appeals
The Court of con- specifications reversed some law, and on facts Judge and sentences.2 the conviction affirmed tempt, but charges, on all affirmance favored Hand, who Augustus wilfully and concerted conduct petitioners’ pronounced “persistent including it as obstructive described many arguments, objections, colloquies, obstructive Judge ...”3 . court against charges groundless which specifications those reversal of who favored Frank, remain- affirmed court reversed, declared were outrageous con- lawyers’ “only because ing ones client, his lawyer no owes kind which of a duct —conduct never em- which was justified, ever be which cannot 1 States, 494. U. v. 341 S. Dennis United 2 Sacher, 416. 182 F. 2d v. States United 3Id., 423. at
4 or for the ployed by advocates, those for minorities
unpopular, courage lawyerdom proud.” whose has made Judge Clark, judg- who would have reversed the entire procedure by us, ment because of the under consideration began opinion: Anglo-Saxon his “To one schooled traditions of legal decorum, pressed by the resistance these appellants rulings on various occasions to the trial judge necessarily appears abominable.”
The effect of petitioners’ actual conduct on the trial and on the burden of an subsequent reviewing courts unnecessarily large record also was noted a differently composed Appeals Court of when they sought reversal of their clients’ conviction and assigned misconduct and Court, judge bias of the trial grounds. as one of the The found that it could not against consider the accusations judge separately from behavior of counsel. It unan- imously charges against found their the trial “com- pletely unconvincing,” and of their own said, conduct “All was done that could contribute to impossible make an orderly and speedy dispatch of . the case ...”6 nature of this obstruction was thus described:
“The record discloses a judge, sorely tried for many months of turmoil, constantly provoked by useless bickering, exposed to slights offensive and insults, harried with interminable if repetition, who, at times he did not conduct himself with the imperturbability of a Rhadamanthus, showed considerably greater *4 self-control and forbearance than given it is to most 7 judges to possess.” petition We denied for further review of the contempt issue.8 On reconsideration, however, the importance of
4 Id., at 454.
5 Id., at 463.
6 United Dennis, States v. 201, 183 2dF. 225. 7Id., at 226.
5
in
persuaded
such cases
practice
permissible
the
clarifying
of procedure
to one question
limited
certiorari,
to grant
us
below.
the court
disagreement
was
on which there
the issue
consideration:
Our order stated
is: Was
for review
question
"...
The sole
one which
certified,
and when
contempt, as
charge of
42
under Rule
was authorized
accusing judge
was
himself; or
punish
and
. . . to determine
(a)
under Rule
and
adjudged
punished
it one to
and
one
accusing
than the
only by judge
a
other
(b)
to defend?”
opportunity
notice, hearing,
after
rec-
of our
contempt
sixty pages
of
fills
The certificate
of
reference,
13,000 pages
incorporates, by
ord and
summary of
in full10 and
trial
The certificate
record.
reported below. Because
evidence have been
relevant
reexamina-
permit
or
require
our limited review does
by detailed
no
would be served
facts,
purpose
tion of the
of law to observe
questions
It
to the
recitals.
is relevant
of the Court
as
result
punished
the behavior
It
took
these characteristics:
Appeals’ judgment has
judge;
of the trial
con-
presence
immediate
place
in the
and disobedience
of decorum
sisted of breaches
rulings upon
jury
of the
of his orders
presence
it was that
professional
was
trial;
the misconduct
In
lawyer.
own
acting as his
lawyers,
layman
or of a
an
instance
not based on
isolated
addition, conviction is
upon
but
speech
behavior,
or
hasty
contumacious
warnings
in the
face
long-continued
course of conduct
contemptuous.
regarded by
that it was
the court
to offend
merely
was not such as
deportment
nature of the
judge,
prejudiced
but it
personal sensitivities
of the trial.
conduct
expeditious, orderly
dispassionate
6 taken no as to
We have issue the statute which confers power on a court to for punish contempt,11 federal but only of regularity procedure as under Rule 42,12designed provide for exercising the manner of 401, court,” provides:
11 18U. S. C. "Power of § “A power punish by court of the United States shall have fine imprisonment, discretion, or contempt authority, at its such of its other, and none as—
“(1) any person presence Misbehavior of in its or so near thereto justice; as to obstruct the administration of “(2) any transactions; of Misbehavior its officersin their official “(3) writ, process, order, Disobedience or resistance to its lawful rule, decree, or command.” 402, “Contempts constituting crimes,” provides
18 C. U. S. § contempt prosecutions criminal of acts which in themselves crimi- contemptuous, nal as well as but adds: contempts “This section shall not be construed to relate to com- presence court, mitted in the of the or so near thereto as to obstruct justice, contempts the administration of nor to committed in diso- any writ, process, order, decree, rule, bedience of lawful or command any brought of, prosecuted entered in suit or or action in the name States, of, same, or on behalf the United but the and all other eases contempt specifically may punished embraced in this section be conformity prevailing usages in to the at law.” 42, Proc., Contempt,” Rule Fed. Rules Crim. “Criminal reads: Summary Disposition.
“(a) contempt may pun- A criminal be summarily judge ished if the certifies that he saw or heard the conduct constituting contempt was and that it committed in the actual presence contempt of the court. The order of shall recite the facts by signed judge be of record. and shall and entered DispositioN Upon Hearing. “(b) A con- criminal Notice (a) tempt except provided prose- in subdivision of this rule shall be place hearing, on the time and cuted notice. notice shall state defense, allowing preparation a reasonable time for the contempt constituting shall state the essential facts the criminal given orally by charged and describe it as such. The notice shall or, open presence court in the of the defendant attorney attorney appointed application or of an of the United States purpose, by or an order for that an order to show cause court by jury any case arrest. The defendant is entitled to a trial *6 a nar- for review is accepted we The issue power. that have they might deny that do not Petitioners row one. hear- without their conduct punished summarily been at once had acted judge if trial (a) 42 under Rule ing But it is contended of each incident. upon occurrence rea- expired by summary punishment of power that this awaited judge the trial (1) that of two circumstances: son could progress time its at which trial, of the completion said, summary it hence, and is obstructed, longer no that he included (2) unnecessary; action had become instances contemptuous that the charge in a the certificate if it which, between counsel agreement result of were the it is Therefore, presence. not made his existed, was or sen- could not be convicted argued petitioners of a de- preparation time for notice, after except tenced as judge, before another hearing, probably fense, 42 (b). in Rule provided explicit to make more obviously
Rule 42 was intended has by at law” which the statute prevailing usages “the 401, S. C. punishment contempts. §§ authorized 18 U. light on this issue. legislative history 402. No sheds not been uniform when Judges of District has Practice A necessary.13 va- power resort to the they have deemed limitations riety concerning contempt powers, of questions Congress provides. so He is entitled to admission which an act charged provided contempt involves to bail in these rules. If the as disqualified judge, from disrespect is to or criticism a hearing except consent. presiding or with the defendant’s at the trial fixing finding guilt an order Upon or the court shall enter a verdict punishment.” 13 denied, States, 880, F. 2d cert. 341 U. S. Hallinan v. United 182 In summarily adjudged contempt under Rule 952, defense counsel was was (a) imprisonment while the trial to six months’ and sentenced over judge's power was sustained progress. to do so still in The trial part delayed overnight objection and that that he had days MacInnis five earlier. In specified was that of four and conduct 953, date, States, 157, denied this 342 U. S. v. 191 F. 2d cert. United but Court,14 by this been considered procedures this promulgated was Rule, which this none construed 1946. 26, March became effective in 1944 and Court distinguishing it out of facts so grew prior Cases precedents. value as are of little their decisions rightly, regarded always, and Summary punishment pettiness, or and, imposed passion if with disfavor the conduct certainly as court brings discredit led which have very practical But the reasons penalizes. in one who contempt power every system of law to vest also are the reasons judicial proceedings presides over summary. Our criminal being for it made which account *7 in the self- rely upon nature and processes adversary full and litigants adequate and counsel for interest of the The nature of the development respective of their cases. in stimulates, at zeal proceedings presupposes, or least opposing lawyers. pervert the But their can strife judicial process supervised well as aid the unless it is and by judge representing overriding a neutral the controlled with to curb impartial justice power social interest and immunities of rights both adversaries. The and accused persons would be to serious and obvious abuse exposed if exert possess frequently the trial bench did not and power prejudicial prosecu- to curb zeal of excessive society preservation tors. The interests of in the of court- by judges room control are no more to be frustrated through improprieties by unchecked defenders. adjudged contempt day defense counsel was for before. conduct the Filing contempt delayed of the certificate of was more than three weeks, fixing punishment and it was that announced would deferred be until the end of the trial. When the was concluded trial contempt, immediately two months after the counsel was sentenced to imprisonment. judge’s power three months’ The trial to do so was upheld. 14Among parte Terry, 289; them: Ex 128 U. S. Cooke v. United States, Nye States, 517; 33; Pendergast 267 U. S. v. United 313 S.U. States, 412; Michael, v. In re United 317 S. 224. U. 326 U. S. litigant every for of counsel right course, it is Of and unten- farfetched appears if it claim, even his press enjoy- Full ruling. considered the court’s to obtain able, heat of allowance for the with due right, ment in- when courts by appellate protected will be controversy, adverse, is ruling But if the by trial courts. fringed judge— it or to insult to resist right is not counsel’s ap- point his preserve only respectfully right his in his own speak, must each trial, lawyers a During peal. with relevance time, allowed and within his time that we matters These are such obvious moderation. not for the of them were it not remind the bar should in this case. misconceptions manifest may that occasions contemplates in question The Rule any immediately arrest arise when the trial must break would conduct of such nature its continuance But summarily. him up trial, gives power so it to do so per- only the Rule petitioners here contend that once exercise, so requires mits but its instant longer no may punishment has been emergency survived the alterna- by be administered summary only but can “sum- (b). think method allowed Rule We tive timing to the does not refer mary” as used this Rule but refers to with to the offense of the action reference *8 delay and formality, with the procedure dispenses which process, that would from the issuance digression result answer, holding hearings, taking complaint service of arguments, awaiting briefs, to submis- evidence, listening goes and all that with conventional findings, sion of procedure trial. The of that is to inform purpose court not within its own The knowledge. the court of events summary procedure only Rule allows as to offenses within knowledge they because occurred his presence. permitting for straightway
Reasons exercise sum- mary power compelling encourag- reasons or ing its immediate exercise. Forthwith judgment is not required by the text of the Rule. Still is such less con- appropriate struction as a safeguard against abuse of the If power. the conduct of these lawyers im- warranted mediate summary punishment on of occasions, dozens no possible prejudice them can result from it delaying until the end of trial if permit circumstances such delay. The overriding consideration integrity is the efficiency of the trial process, and if the im- judge deems mediate inexpedient action he should be allowed discre- tion to procedure follow the taken this case. To sum- mon a lawyer before the and pronounce bench him guilty of contempt is not unlikely prejudice his client. It might be done out of presence of the jury, but we> that a held contempt judgment public.15 must be Only the naive and inexperienced would assume that news of such action will not jurors. reach the If the court were required also pronounce then to sentence, a con- struction quite as consistent with the text of the Rule as petitioners’ present contention, it add would to the prejudice. might It also have the additional consequence of depriving defendant of his counsel unless execution of prison sentence were suspended or stayed speedily as it had imposed. procedure been petition- which ers now insist just procedure most likely achieve only purpose discernible of the contemptuous con- duct. Had the trial judge here pursued that course, they could have made a formidable assertion that was un- fair to or them to their clients and that a new trial was
required on account of it.
In this case counsel repeatedly were warned that their
conduct
regarded
was
as contemptuous. No claim can
be made that
the judge awaited the close of the trial to
pounce
them
upon
for some offense
at
unnoted
the time
*9
Oliver,
In re
We hold that Rule 42 allows the trial in presence contempt, immediately occurrence his of a in will summarily punish it, if, opinion, delay his prejudice hold, hand, the trial. other that if We he exigencies require believes the of the trial that he defer judgment completion until its do without may he so extinguishing power. his
The other reversing reason ascribed for this case is that accusing judge among other charged petitioners, things, with an in a agreement deliberately entered into cold and impair calculated “to health.” It is manner, my charged not an in the agreement such was made presence judge. a We need not determine whether proper construction of the would certificate place presence concert action which did take his to an implied agreement charging amounted or as an express earlier agreement verbal to act concert. This specification was Appeals, which, reversed the Court of however, found the judgment amply it, sustained without and considered the separable substantive offenses independent, as do we. It judgment found the amply without sustained the conspiracy count. The sentences concurrently, ran so reversal of one does require re- versal of other.
A construction the Rule is advocated which would deny judge power summarily punish contempt personal is to himself except, perhaps, at a moment when necessary to forestall abortion of the trial. His only recourse, said, it is tois become an accuser or complaining witness a proceeding before another judge. *10 the and limitation, no expresses such itself
The Rule almost It is inescapable. is almost contrary inference in the a committed contempt of court any inevitable offense be an a trial will during judge of the presence a trial the court At authority. and dignity his against the court so much judge and the judge is so much opin- in countless interchangeably used two terms are in the literature generally in and ions this Court other. contempt of the one is contempt of the law, and for such only is summary punishment It be that cannot may and indifferent as leave the contempts minor con- abusive and defiant by adding hectoring, be evaded inter- an Such an judge as individual. duct toward the power purports nullify, practice, in pretation would grant. intimi- will have an that these sentences urged We are members here- whose dating legal profession, effect on the “defendants trials where appear after will decline do so under power,” or will hostility of those objects Ameri- right a of fear” which “threatens “cloud by fearlessly vigorously represented to be people can counsel.” other- counsel, summary or contempt power over
That make their Men who capable of abuse is certain. wise, irascibility, vanity, exhibit to the bench sometimes way to which and other weaknesses narrowness, arrogance, recognize judges, however, Most human flesh is heir. They forthright lawyerly conduct. respect courageous, with of man fired or heated words a mistake overzeal rarely de- conduct which contemptuous for the win, a desire to recognize They punishment. and deserves rulings fies one and necessarily is contentious profession our makes a strenuous effort lawyer who respect they his client. lawyer mercy is at the knows that no profession trial This case demonstrates judge. federal single
of a appeal have may he effect takes punishment that before Petitioners, Appeals. Court of law and fact to the have but of their sentences part no yet, have served directly has been their conduct on bail while enlarged been appeal on their own of Appeals one Court reviewed Court differently composed indirectly by and considered judges those Some of appeal. Appeals on their clients’ unparalleled almost experience appellate had trial and not been con- variety. lawyers These length *11 lone of one impulse they claim, merely by demned, as been condemned has judge. and hostile Their conduct a under this record who has examined by every judge doubted whether It is to be to review the facts. duty by punishment greatly will be terrorized profession and detached after such extended of of its members some contempt if of excites Moreover, power consideration. by hardly would be relieved bar, terror fear and judge may pro- that the contention upholding petitioners’ of maximum precise at the moment against lawyer a ceed if a cooler second not do so he awaits may heat but thought. persons iden- not unaware or unconcerned
areWe find it difficult enlist unpopular may with causes tified think it must be of their choice. But we the counsel of held being from fear quite apart to causes ascribed would lawyers effective for we think few contempt, necessary or here as either the tactics condemned regard That clients seem to a successful defense. such helpful likely to con- necessary is thought to have these tactics rather appear for them to the bar’s reluctance tribute contempt. of than fear more misunderstanding, we make no may
But that there will unhesi- needed, if its aid be Court, clear that this and effective fearless, vigorous tatingly protect counsel to the office of the duty pertaining performance every will whatsoever. But it any person advocate on behalf inde- with or insults courage with contempt equate orderly- processes protect It will also pendence. calling. lawyer’s object supreme is the trial, which Affirmed. in the consideration part took no Clark Mr. Justice of this case. or decision Black, dissenting.
Mr. Justice my belief because I would reverse these convictions the con- passed not have (1) Judge should con- whatever preferred; (2) tempt charges he been not have summa- charges, guilt should sidered hearing a notice, without as it was—without rily decided to defend petitioners an opportunity and without constitutionally entitled were themselves; (3) petitioners contempt innocence of criminal guilt have their or jury. decided of the Communist a nine months’ trial of leaders
After and was dis- brought guilty in a verdict of Party jury Medina asked Judge charged. Immediately, presiding then read them lawyers1 up, *12 all to stand the defendants’ “contempt certificate” very part lengthy minor many acts they alleged which were to have committed trial. contempt during protracted at various times the a word say of them a chance to affording any Without all of them acted, presiding Judge before he the held prison. one to guilty contempt sentenced each grave Judge First. think it was a error for the to pass charges brought. why on the he Reasons he should not have done so have forcefully presented by been Frankfurter by Judge Justice here and Charles Appeals. arguments Clark in the Court of Their Judge adjudications Medina should not have made these Dennis, lawyer, The defendant who had acted as his own is in group. cluded in this vividly buttressed by the collection of episodes trial
placed in appendix to Mr. Justice Frankfurter's post, p. opinion, 42. episodes These bespeak an attitude of distrust of lawyers and, I regret add, of hostility to them, generally deemed inconsistent with that com- plete impartiality the process of judging demands. Facts appear of special importance to me in considering what were the Judge’s personal feelings towards those he convicted are these: presiding
The Judge was convinced that the lawyers had deliberately and calculatingly badgered and insulted him throughout long months of trial. Among these insults, so Judge believed and declared, insolent, were sarcastic, impudent and disrespectful that he charges angled for newspaper headlines; connived with the United States Attorney; judicially entertained racial prejudice; acted with “bias, prejudice, corruption, partiality.” He found and repeatedly lawyers declared that these were acting agreement concerted in an attempt create con- fusion, provoke incidents and break down his health. As the trial progressed, the record shows that Judge ex- pressed stronger and stronger fears that the alleged con- spiracy to destroy his health was about to succeed. This may explain belief sharp his repartee somewhat heated frequent his controversies with counsel. But whatever the provocation, the record shows a constantly growing resentment of Judge against the lawyers. Judge’s distrust of and disrespect for the law-
yers clearly appear from his frequent charges that their statements were false and unreliable. These repeated accusations, as particularly shown by the following col- impress loquy, me as showing such hostility bitter to the lawyers that the accuser should be disqualified held *13 try them:
“Mr. Sacher: I am offended on these constant as- persions on veracity of representations I 16 I resent court an officer this I am
make. these— you when instance was an There
“The Court: these they passing were me when lied to deliberately and you they were You said releases. press red-handed. caught were charge offensive the most That is
“Mr. Sacher: . . . the court. an officer of against be made that can but his honor. lawyer got a has What caught red-handed. . . . were “The Court: thing most detestable That is the “Mr. Sacher: urge I that and judge. from a resent I ever'heard I will ... de- from the expunged record. that it be against your of the bar as a member my honor fend an idiot resorts ... I think else. anybody or Honor it. have to do lying. don’t it. You did “The Court: go. can see these little amenities better let “We thought you if you manner belligerent your from bench up to the physically come could, might manner, know attack me. physically 2 degree.” slightest me frighten it doesn’t anger spoken fighting word ordinarily Liar is another. can hostility against personal bitter express here, particularly its reason for use of no other think Judge’s And the was charge baseless.3 Judge’s since in particu- lawyers, these Sacher feeling personal towards immediately an occurrence further lar, is indicated was asked and sentenced. Sacher they had been after This making brief statement. privilege granted re colloquy pertinent, of it is not all the full text While appendix pp. to Mr. Justice at 80-81 of the peated here as it is set out opinion. Frankfurter’s failed to sustain the held that the Appeals record The Court press spoken falsely releases. about the had accusations that Sacher charge was reversed. Specification XV based
17 Nevertheless dignified.4 relevant was statement language this him and used interrupted Judge the summarily sentenced abruptly just he had lawyer to a manner brazen in the same “You continue prison: to despite . . . whole trial. throughout that used continue case, you throughout warnings all kinds of it which putting way mealy-mouth old with the same (Em- the case.” throughout to listening I have been say to compels me Candor supplied.) phasis lawyer who of the dignity the decorum episode this nothing by com- prison to loses sentenced just had been with others. parison liar marks a a a calling lawyer
Certainly repeatedly judicial the desirable standard. from drastic deviation try to permitted no more be does this should judge A who to judge permitted than a should be accuses lawyer he Ohio, 510. No Tumey 273 S. Cf. v. U. try his own case. pre- who has to trial before man should be forced integrity. honor and personal his attacked viously publicly great. too justice is The risk to impartial immediately preceding the court’s parts of Sacher’s statement follows: interruption were as country submit, your Honor, with an respectfully that a
“And I country danger. Here in whose liberties are in is a intimidated bar occupies place of honor bar know that the American America we people, and preservation liberties of our of the in the achievement and your judg- respect decision and your Honor, due to say, with all courage integrity, independence and any threat to the ment here that integrity and whole- only to the constitute a threat of the bar can preservation of our civil liberties. someness and speak of intimidation say, your .Honor, that I myself me “For let Ameri- necessary in the cause of be personal terms. If it not in months, say your Honor then I six liberty have to serve can I shall hope very it will very, small. price will have been that, to do but country advocate to have necessary for an in our necessary— if it be liberty; price of misbe- price it is the It isn’t the “The Court: in the certificate. as stated disorder havior and say Honor —” “Mr. Sacher: petition- these and conviction sentence Before Second. themselves. to defend at all no chance were accorded ers challenge opportunity an afforded not even were They sen- charges. Their accuracy or the sufficiency not. were charges full to them but read tences were careers blasting legal summary this reconcile cannot *15 a consti- procedure justice. Such system a fair of with every of security to the menace overhanging an tutes is most The menace in America. advocate courtroom de- or obscure, unpopular who are lawyers for ominous unorthodox causes. or unpopular persons of fenders inherently unfair only trial is not without Conviction the up to is carried but the unfairness court, in the first A fair review that. proves This level. case appellate most of of evidence scrutiny 13,000 pages of requires contempt certificate states: For the is irrelevant. which tran- to the from or references quotations “As isolated statements, acts, partial but a view of script give can make the entire hereby to, and conduct above referred a record obscured of these Such part proceedings.” record in a maze of evidence that lawyers’ trial conduct guilt or innocence. nothing to do with their own has reading that shrinks from surprising It is not this Court made a it refuses to do so. No assertion is record; such it. Conse- Appeals through that the Court of waded Ap- that of every there is indication Court quently of appraised accuracy Judge the factual Medina’s peals him charges by “inadequate” on basis deemed because only partial “a view” of the numerous court- presenting an “inadequate” controversies.5 Such basis of lawyer re- lawyers contempt do not think the convictions of these for 5 I theory expressly already been be affirmed on the that such has should "differently composed Appeals” impliedly Court of or done “differently affirmed conviction the Communist leaders. That merely composed” judge court held that no conduct the trial called reversing the convictions of the Communist leaders. I think that expected hearing view is to be since no was held which could have framed concrete issues and focused attention on evidence relevant to them. in a
There are other manifest elements of unfairness system appellate which calls on courts to the trial conduct of lawyers contempt accused of on the basis of all against prior evidence introduced their clients in a criminal particularly emphasized case. This unfairness is here. root of Judge Medina’s charges was these lawyers followed concerted course deliberately designed to bring judicial system the whole into public contempt disgrace. Their clients were leaders. Communist 13,000 pages Much of evidence was offered to show they planned destroy to subvert and all governmental institutions, including courts. we to depart Unless high from traditions of bar, evil purposes their clients could not be imputed lawyers to these duty whose it was to represent them with fidelity and zeal. Yet from *16 very parts the of the record which Judge speci- Medina it fied, is difficult to escape impression the in- that his ferences against the lawyers were un- colored, however consciously, by his natural for unpatriotic abhorrence the and designs treasonable attributed to their Communist leader clients. It appears to me that if there have ever or been, can ever in be, cases which lawyers are entitled
to a full hearing before their liberty is forfeited and their professional hopes are blighted, these are such cases.
For reasons stated and for above reasons stated the dissent of and the dissent of Justice Frankfurter Judge Charles Clark, think these cases be re- should support affirmance does “differently an inference that the com- posed” court would also judgment contempt have sustained a of against lawyers. the “differently Moreover composed” while this severely lawyers’ court conduct, condemned the apparently felt imply constrained to that the trial “did not conduct himself imperturbability with the of a . . . Rhadamanthus .” F. 2d 226. a hear- petitioners denied Medina Judge because versed that ground further reverse I would But ing. safeguards all the constitutional to entitled are petitioners including crime, with charged persons protect to provided by jury. trial that provides Constitution 2 of the Ill, § Art. Third. Not Jury.” by . . . shall all Crimes Trial of “The trial, jury single protection this with satisfied declaring by guaranty reemphasized Founders prosecutions, “In all criminal Amendment Sixth trial, public speedy right enjoy the shall accused Amendment Fifth And the . .” . . jury impartial an for a to answer be held shall person “No provides present aon crime, unless infamous or otherwise capital, . .” These con . . Jury a Grand of or indictment ment brought prosecutions” are “criminal tempt proceedings im were Petitioners public wrong. alleged an avenge these months, terms but to six up for terms prisoned position longer. Government’s have been could America, 330 Mine Workers v. United States United of for the punishment amount was 258, S.U. discretion, judge’s at a be fixed contempt can crime prohibition Amendment’s Eighth but the no limit with Certainly, peti punishment. cruel unusual against Consequently for crimes.6 sentenced have been tioners jury of the deprived wrongfully have been lawyers these unless provisions foregoing constitutional benefits contempt. to the crime they are inapplicable past opinions in some undoubtedly sayings There what was done here. justify enough broad Court this sub- pretty generally lawyers perhaps judges Indeed *17 judicial institutions would doctrine to the scribe 6 Gompers v. 387, 392; Steamship Co., 20 Wall. v. New Orleans States, v. 610, 611; 604, United Michaelson States, 233 U. S. United 412, 317 U. States, v. S. Pendergast 42, 66-67; United 266 U. S. 95, 103. 264 U. S. States, Myers v. United 416-418; but cf.
21 be imperiled if judges power were without summarily punish convict and for courtroom offenses. Our recent decisions, however, expressed more cautious views judicial about authority punish for contempt. Returning early to the views of Court, this we have marked the limits of that authority as being “the least possible power adequate to the In re proposed.” end Oliver, 257, U. S. 274, and cases there cited. The proposed” “end “power adequate” in the court to pre- serve order and decorum and to compel obedience to valid court orders. To achieve these ends —decorum and obedience to orders —courts power must have to act im- mediately, upon this power need the of contempt rests. Concurring opinion, United States v. Mine United America, Workers supra, at U. S. 331-332. Meas- ured by test, Judge this as Charles Clark’s dissenting opinion pointed out, there was no necessity here for Judge summary Medina’s action, because the trial was over the danger obstructing passed. was For the same reason there was no longer need, so far as that trial was concerned, to try petitioners for their courtroom con- duct without benefit of the Bill of Rights procedural safeguards.
A concurring judge in the Court of Appeals feared that it might bring about “demoralization of the au- court’s thority” any should one other than Judge try Medina case. The given reason was: “For instance, all likeli- hood, at a trial of the lawyers, Sacher would introduce the testimony of himself and others an prove effort that he was 'angrily not shouting,’ as charged in Specifica- VII, tion and did not ‘in speak an manner,’ insolent as charged in Specification Gladstein VIII; similarly would seek to prove there he did ‘angrily’ advance ‘toward the bench’ or make remarks in a ‘truculent manner,’ as charged Specification VIII, did not speak to the ‘in impertinent sarcastic and manner,’ charged *18 22 416, 461. F. 2d What 182 etc., etc.” XI; Specification by accused Are defendants this? wrong with be
would conclusively pre to be to them offensive being judges of judges’ observations theory the guilty sumed is There infallible? accepted be musí inferences honestly mis may be that a possibility a always of our and the existence Unfortunately history taken. from may be errors judicial Rights indicate Bill of worse causes. out of contempt grew summary of power
The historic order and decorum enforcement of judicial need for orders. to court compel and to obedience in the courtroom power unrestricted judges having of believe the idea trials Bill in relation to criminal by-pass Rights of this historic offspring an punishments illegitimate that such It has been said contempt power. coercive into the slipped Chamber “summary of the Star process history alleged ancient courts,” law and that common 7 specific is “fiction.” With support its existence contempt proceedings summary I think reservation order, obedience and solely to enforce may employed punishment, unconditional criminal impose and not to “I would of Mr. Justice Holmes: with this statement agree sharpest and most man in favor go any as far as in Court and obedience enforcement of order summary no need for immediate ac- decrees, but when there is of law and any are like other breach contempts tion illegal law with other with as the deals should be dealt States, 247 v. United Newspaper Toledo Co. U. S. acts.” 425-426. 402, Congress Landis, over Procedure in Frankfurter and Power Contempts Courts, L. Rev.
Criminal in “Inferior” Federal 37 Harv. 1010, King, Contempt 1047. also Nelles and Publications See States, 401; History Contempt of Fox, L. United 28 Col. Rev. (1927). Court
I believe petitioners these jury were entitled to a trial. a jury believe is all the more necessary to obtain fair trial when the alleged offense relates to conduct that has *19 personally a affronted judge. The majority here the below majority appear to have affirmed these convictions on the assumption that appellate review so fully guaran- a tees fair trial that it is an adequate substitute for trial by jury. IWhile agree that power the of lawyer-judges to set aside convictions prejudicial deemed or erroneous is one vital safeguard of liberty, cannot agree that affords the full measure of security which the Constitu- tion provided has against unjust convictions.8 Preference for by trial jury a of laymen trial over by lawyer-judges lies behind the constitutional guarantee of trial by jury. I am among those who still believe trial jury one of the indispensable safeguards of liberty.
Mr. Justice Frankfurter, dissenting.
Bitter experience has sharpened our realization that a
major test of true democracy is the fair administration
justice.
of
If the conditions for a society of free men
formulated in our Bill of
Rights
to
not
be turned
into mere rhetoric,
independent
and impartial courts
8During the parliamentary discussion of
bill,
Mr. Fox’s libel
sought
which
preserve
to
by jury,
trial
it was called to the Parlia
ment’s attention that
Buller,
Mr. Justice
trying
while
the Dean of
Asaph
St.
Shrewsbury,
at
“rights
had
appeal”
declared the
of
to be
birth-rights”
“dearest
Englishman:
of an
marquis
“The
Lans-
[of
ridiculed the declaration,
downe]
right
appeal
that a
of
of
arrest
judgment,
moving
and of
error,
for a writ of
was one of the dearest
birth-rights
Englishmen,
of
asserting that it was neither more nor less
being
than the
turned over
lawyers
from one set of
another,
from that other to a third.
fact,
In
it was to be turned over from the
cause,
who tried the
to himself and
others,
three
in a second
place;
from
them to
again,
themselves
mixed with a few more
judges, in
place!”
a third
Hansard,
Parliamentary History of
England, p. 1419.
end,
To
enforcement.
for their
available
must
attempts
with
deal
power
must
courts
safeguard concerns
This
justice.
of
the course
disrupt
everyone’s
it is
case;
particular
ain
litigants
merely
pre-
of justice
administration
impartial
The
concern.
judicial
of
conduct
and effective
dignified
supposes
at-
proper
on a
dependent
in turn
That
proceedings.
courts
of
power
Thus,
courtroom.
in the
mosphere
enforce-
assuring the
of
means
contempt is
to punish
of the
protection
to law.
according
justice
ment
presupposes
liberties
civil
conceived
generously
most
by dis-
nor
without
by interests
neither
overawed
court
the teach-
Such is
courtroom.
within the
tactics
ruptive
nations.
English-speaking
history
ing
teaching.
this
rejected
has
this Court
No decision
opinions
Court’s
*20
professions
of the
none
Certainly
too
restrictions
instances
in a few
sure,
While, to
has.
view, unwarranted
of
point
from
and,
my
confining
for
punish
con-
courts
power
this
of
upon
placed
been
Fed-
denied.
been
has
itself
never
power
tempt,
inflict
circumstances,
appropriate
under
may,
eral courts
constitutional
those
without
contempt
for
punishment
of
prosecution
for the
necessary
safeguards
procedural
sense.
colloquial
historical and
in its
crime
arbitrary imposi-
not authorize
does
power
But this
by
indictment
dispense with
To
punishment.
tion of
not mean
does
of
twelve
by
jury
trial
jury and
grand
Reason
and fairness.
reason
disregard
the right
proce-
contempt,
demand,
punishing
even
fairness
the effective
for
the needs
which
within
safeguards
dural
at
while
satisfied
amply
can be
justice
of
administration
kept
power
drastic
the reach
so
the same time
experience
abuse. While
minimize
will
limits that
within
possess
that courts
recognizing
necessity of
shown
has
that restric-
proven
also
has
experience
authority,
this
must fence
power
purposes
to the
appropriate
tions
Congress, by legislation dating
its exercise. Hence
back more than a
years,
put geographic
hundred
has
procedural
upon
power
restrictions
States
United
courts to punish summarily
contempt.
See Michael
States,
States,
son v.
42; Nye
United
266 U. S.
v. United
The Court did-so for a deeply reason imbedded our legal system very fact too often neglected. Times of tension, which are usually periods of war and aftermath, their bring to the surface. Reflecting no doubt their concern over untoward events in law enforce arising ment out of the First World War, Justice Brandéis and Mr. Justice gave Holmes quiet warning when they observed that “in the development of our lib erty upon insistence procedural regularity has a large been . McDowell, factor.” Burdeau v. 465, 256 U. S. 477 It is not for nothing that most of the provisions of our Bill of Rights are concerned with of procedure. matters
That is what this case is “procedural regular- about — ity.” Not whether petitioners these have been guilty conduct professionally inexcusable, but what tribunal should insit judgment; not they whether should be pun- *21 ished, but who should mete out the appropriate punish- ment; not whether a Federal court has authority pre- to vent its proceedings from being subverted, but how that authority should be exercised so as to assure the rectitude of legal proceedings and at the same time not detract from the authority of law itself.
This case arises out of trial the of the eleven Com- munist Party leaders whose convictions were in sustained ways many In States, 494. S. 341 U. United
Dennis v. length, its ordinary the out of wholly a trial was —in at- emotional and political issues, the of the nature the of the conduct enveloped, were they in which mosphere sev- After them. between the conflicts counsel, and court trial the motions, pre-trial on proceedings of eral weeks were consumed weeks way. Nine under got proper the the case trying thirty more jury a and getting verdict brought the jury after the Immediately jury. charged judge trial defendants, against guilty of (who defendants of the and one lawyers defense the five of court contempt defense) with own his had conducted elaborate carefully prepared, a He filed trial. during the with- charges, and forty containing contempt of certificate sen- imposed and guilty found them hearing further out imprison- months’ to six days’ thirty from ranging tences aof misconduct charged specifications These ment. by law- when committed reprehensible especially nature judi- our of court, part are who, as officers yers, further, duty under are they such As system. cial of administration and fair rational obstruct, not justice. guilty were found petitioners which
The certificate
during the
thirty-nine occurrences
charged
contempt
of
However,
of
items
misconduct.
thirty-nine
trial as
regarded by
not
were
items
specified
these
manifestations
them
He
instances.
deemed
discrete
sure,
him.
against
To
by the contemnors
conspiracy
and
charged
individually
XL
II to
were
Specifications
by themselves
technically
sustainable
therefore
with
set forth
conspiracy,
acts of
merely as overt
I.
the core
But
Specification
detail as
much
these
against
the accusations
gravamen
charges —the
had
that the petitioners
petitioners —was
effort
deliberate,
concerted
wilful,
in a
“joined
Foster,
States v.
the trial United
delay
obstruct
*22
al.,
et
C 128-87, for the purpose of causing such
disorder and confusion as
prevent
would
a verdict
by a jury on the issues raised by the indictment; purpose
the
of bringing the
Court
the entire
judicial
Federal
into
system
general discredit and
disrepute, by endeavoring to
divert
attention of
the Court and jury from the serious charge against
their clients of a conspiracy in substance to teach and
advocate the overthrow of the Government of the
United States by force and violence, by attacking the
Presiding Judge and all the
Judges
this Court, the
jury
system this District,
Department
of Jus-
tice of the United States, the President of the United
States, the police of New
City,
York
public
and the
press of New York and other cities.”
Though the certificate makes it plain enough,
read-
ing of the record leaves no doubt
the judge’s mind
the individual occurrences set forth in Specifications II
to XL derived their
significance
chief
from his finding
they were tributary to the design upon which the
petitioners had embarked —a conspiracy against
judge in order to prevent a fair trial of the
He
issues.
found them guilty of that. But the Court of Appeals re-
versed —and the Government has
questioned
this re-
versal of the trial judge
petitioners
convictions
—the
on the main charge, that of conspiracy. However, that
court, with one judge dissenting, did sustain the convic-
tions on thirty-seven
specifications.
other
I would not remotely minimize gravity of the con- duct of which petitioners have been found guilty, let alone condone it. But their guilt intrinsic is not relevant to the issue before us. This Court brought the case here in order to consider whether the trial court followed the proper procedure in determining that the misconduct of *23 S. 342 U. punishment. them subjected petitioners
the con- reversed has this Court mind of out Time 858. no though offenses, even heinous the most for victions was entertained. the defendants of guilt the about doubt was estab- guilt which by mode the because It reversed are which procedure of standards those disregarded lished here, So society. for our important so and precious so in the circum- whether, for decision only question the without should, judge himself trial the case, this of stances termination successful after the hearing and notice of con- a series punished summarily trial, have the of cen- to be a he conceived what of out tempts growing nine of a period over committed design, tral mischievous the by designated judge, another whether or months; District of the or Appeals of the Court of Judge Chief have York, should Newof District for the Southern Court made contempt of notice, charges the after due heard, not was judge the trial At end the judge. trial the or he did doing what of alternatives the with confronted ques- The unpunished. go allowing contemnors Due punish. should who but punishment, not was tion miscon- often too questions, procedural for such regard of the truth justifies technical, alone as narrow ceived essential democracy, our of boasts great of one system. judicial of our fairness me to compel case this circumstances particular combined not should trial conclude his For judge. of accuser the functions in himself mat- They concerned impersonal. were accusations What- engaged. deeply was personally he in which ters sitting trial during the existed may have occasion ever victimization, personal upon claims judgment this It falls terminated. had the trial after ceased to correct system judicial of the Federal head Court power. judicial abuse such grants All of power, including the verbally unlimited terms of Rule 42 (a) of the Rules of Criminal Procedure, subject to the inherent limitation that power shall be fairly used for the purpose for which it is con- ferred. It is a limitation derived not merely general from considerations of reason but from the traditional concepts of the proper discharge judicial function. “A crim- inal contempt may punished summarily,” so runs Rule “if (a), the judge certifies that he saw or heard the con- duct constituting the contempt and that it was committed in the presence actual of the court.” The Rule merely permits summary punishment. It does not command *24 summary punishment of all contempts in “committed the actual presence of court,” the in all circumstances and at any time. That there unexpressed limits power to this is recognized even by the Government. For it concedes that a judge could not summarily punish contempt without notice and hearing any at undefined time long after it has in occurred his presence. In short, Rule 42 (a), which in 1946 declared what the was,1 law acknowl- an edges power undefined for imposing summary punish- ment without expressly laying down the boundaries power the granted. Legislation normally carries such implications.
To recognize the generality of a power is begin- the ning not the end of the inquiry in whether specific circumstances which invoked power due regard was had for the implied Among restrictions. the'restrictions to be implied, as a matter of course, are two princi- basic ples of our law—that no judge should sit in a case in which he is personally involved and that no criminal punishment should be meted out except upon notice and due hearing, unless overriding necessity precludes such indispensable 1 See Advisory Notes of on (a), Committee Rule 42 Federal Rules of Criminal Procedure. feeling affording fairness and assuring for
safeguards com- of these Observance done. has been fairness runs It sometimes price. its has traditions monplace times At delay. no that brooks feeling public counter process cumbersome needlessly a to entail it seems one of it is process a But as obvious. with the dealing of western achievements indispensable and the cherished tradi- controlling of these disregard It his is civilization. judge, district me to conclude that forces tions con- summary using erred tried, sorely however him. before in the circumstances tempt procedure authority have summary such exercises Happily few instances are the rarer Still this Court. before come which on in the conduct involved deeply is judge where here did come situation Such a judgment. to pass he has States, 267 v. United ago Cooke twenty-five years some occasion, took Taft then Justice 517. Chief U. S. con Court, guiding down lay the whole behalf of this case: followed in been should have which siderations must which contempt power “The admin- orderly due and in protecting the exercise and authority maintaining the justice istration in- important most of the court dignity one and is a delicate But its exercise dispensable. *25 con- arbitrary oppressive or avoid is needed to care mandatory is more This rule caution clusions. has in it element contempt charged the the where The upon judge. attack the or personal criticism personal impulse slightest the must banish judge injure not backward but he should bend reprisal, leniency. great too authority the court would avoid either judge of another substitution The Of course always possible. but tendency it palpably aggravated by contempt acts where judge order to drive the upon personal attack reasons, the case for scheme out of ulterior
31
should not
permitted
to succeed. But attempts
of this kind are rare. All of
cases,
such
however,
present difficult questions judge.
All we can
say upon the whole matter is that where conditions
do not
make
impracticable, or where the delay may
not injure public
private
or
right, a judge
upon
called
to act in a case of
by personal
contempt
attack upon
him, may, without flinching from his duty, properly
ask that one of his fellow judges take his place.
Cornish v. The
States,
United
“The case before us is one in which the issue be- tween the judge and parties had come to involve personal marked feeling that did not make for an impartial and judicial calm consideration and con- clusion, as the statement of the proceedings abun- dantly shows. think, We therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.” U. S. at 539.
In the Cooke case the Court did much more than set
aside a sentence of thirty days for contempt because “the
procedure pursued was unfair and oppressive,” 267 U. S.
517, 538. There, as here, the contempt
bywas
a lawyer;
there, as here, the trial court’s action was affirmed by a
Court of Appeals in an opinion by one of the most eminent
judges of his day.
respected its observance. generalities of repetition by not had Enforcement must We practice. in disregard of their
and sanction the pro- of favor a predisposition doubt, with no start, respon- the initial isHis action. judge’s trial of a priety with discretion the assume must and we sibility, judges by normally be exercised will entrusted he is which con- These sense. good self-discipline, firmness, of when But review. on heavily count should siderations abstract being punished, shrift short given men reviewing court of duty the the with dispense rules cannot In drama. courtroom the re-create to imaginatively hampered, unduly being from trial courts to save order by arbitrary power with them leave necessary to is not to the propriety judicial of presumption the on relying of scrutiny indulgent, if even sophisticated, aof exclusion record. the the in which the circumstances understand to we are
If the study of a close imposed, were under review sentences The cer- be avoided. Dennis case cannot in the record of record whole the incorporated contempt tificate of it. We of basis findings its made case sum- propriety on the passing less cannot do ap- if arewe less do cannot We mary convictions. trial court assumed power fairly praise con- trial end of at the further ado without punishing does This long travail. during its place took duct peti- these conduct whether reviewing imply not is indis- record The whole contemptuous. tioners was which question we procedural to the relevant pensably punished? such misconduct how was brought here: wide giving importance in the I believe Deeply discretionary powers scope niggardly *27 trial judges and with a lifelong regard for the wisdom of judge who, on behalf of the Court of Appeals, found the discretion of the trial judge was not abused, cannot escape the conviction that another district judge should have tried the contempt issue. And this, though one may well assume that any other judge would have been compelled to find contempt in this case and might have imposed even severer sentences. Preserving and enhancing respect for law is always important more than sustaining the infliction of punishment in a particular case.
A reading of the fifteen volumes of testimony in the Dennis record leaves one with the strong feeling conduct found contemptuous inwas the main directed against the trial judge personally and that the judge him- self so regarded it. In preamble of his contempt cer- tificate he states that one of the purposes of the nefarious agreement with which he charged the lawyers was "im- pairing my health so that the trial could not continue.” great majority of the specific acts to “effect plan” this had personally as their target. The petitioners, so the judge found Specification I,
"b. Suggested that various findings by the Court were made for the purpose of newspaper headlines;
"c. Insinuated that there was connivance between the Court and the United States Attorney;
“e. Persisted in making long, repetitious, and un- substantial arguments, objections, and protests, working in shifts, accompanied by shouting, sneering, and snickering;
"f. Urged one another on to badger the Court; "g. Repeatedly made charges against the Court bias, prejudice, corruption, and partiality;
“h. Made a succession of disrespectful, insolent, and sarcastic comments and remarks to the Court; sub- on excluded asking questions Persisted
“k. sus- would objections knowing matters, ject bias false picture to create to endeavor tained, Court; part on the partiality without prejudice racial Court “1. Accused foundation; any most in a themselves conducted Generally
“m. some forth to call in an endeavor manner provocative the Court from *28 response undignified or intemperate a demonstration as upon be relied then could which trial.” the over preside to unfitness Court’s of the in- already as was, Specification on conviction The theme But its Appeals. of Court the by dicated, reversed inescapably It conveys certificate. whole the underlies sig- permeating been the to have judge deemed the what “overt The lawyers. these of behavior the of nificance the of compendium but are in Specification listed acts” de- these of twenty-nine At least specifications. other personally: judge trial the against directed conduct scribe the with bias, of collusion and racial prejudice of charges headline-seeking. of prosecution, trial the against directed contempts the only were Not the in reflex had its lawyers the of conduct The judge. his trial of the in the course intervals frequent At judge. law- the feeling against personal reveal plainly comments may have trial course much the however yers, he ex- occasions numerous feeling. On such justified wear to trying were lawyers the that his belief pressed doing- him into provoke health, to his down, injure to him a mistrial or cause prejudice, show would something appeal. or reversal excerpts of quotes judge the trial
The certificate excerpts But these case. principal the from record the the reveals remotely even picture for a brief too are prop- cannot contempts specified The of the trial. course determining pro- to a view with appraised erly be dealing them, they for with unless appropriate cedure than can given perspective are a much more balanced put In order to got contempt. from the certificate trial an specified contempts setting, appendix their to in the opinion supplements meager excerpts this The this only adequate way certificate. document case would be make the whole Dennis record of this part as did trial in his cer- opinion, judge by reference space imposed tificate. But even within the limits of an appendix indubitably it is established that judge deeply personally felt involved the conduct punished lawyers. which he the defense He was not merely a witness to an occurrence, would be who observed a fight badger- fist his courtroom or brutal ing of a witness an impropriety or towards the jury. judge acted as the prosecuting witness; he thought himself as pervades such. His self-concern record; humanly could not have been excluded from his judgment contempt. Judges human, and it is not suggested any other judge imper- could have been vious the abuse had he subjected been to it. But pre- *29 cisely judge because a human, is and in common frailty or manliness interpret would lawyers such conduct of an attack on himself personally, he should not subse- in quently sit judgment on his assailants, barring only instances where such extraordinary procedure is com- pellingly necessary order that trial may proceed the and not be aborted.2 parte Terry, Ex 289, presented totally 128 U. S. a different
situation support and lends no whatever to of the action the trial court in this case. As was stated in the order of “David commitment: Terry guilty contempt S. was of by a of this court misbehavior in presence by its presence a forcible resistance in the of the court to Id,., briefly a lawful order thereof . . . .” at 298. This indicates differentiating Terry the circumstances between the case and this sitting case. While the United States Circuit Court was and one delivering opinion pending case, Terry member was its a in- Mrs. an ex- concededly contempt punishment Summary Necessity of Due Process. requirements to the ception its limits. must bound Necessity departure. dictates trial of the very to the end of events the course In this case to en- necessary were not summary measures shows judi- from established go Departure on. able the trial to iswho unfitting judge for a makes it which practice, cial therefore case, was in his own to sit personally involved name good nor the self-respect Neither unwarranted. many Quite Despite the otherwise. it. required the law to trial went charged, the contempt that were incidents a incident, without after the first nine months completion, of the lay any one necessary making single occasion the trial in order to assure by the heel lawyers and to keep order judge trial was able proceed. The brief recesses by business occasional the court’s continue peri- decorum, by and restore passions calculated cool ob- lawyers, by shutting off warnings to defense odic concisely were rulings whenever arguments structive firmly held to. stated and which, though then, was not situation even
This, of the con- target involved as the personally was against con- conduct, peremptory action temptuous salvage to maintain order and to necessary temnors was for the necessary action is proceedings. Where such reading by terrupted a violent outburst. When the United States courtroom, from ordered court to remove her Marshal was Upon Terry, Marshal. husband, intervened to assault the her following interrup reading opinion, this the conclusion of the having duly deliberated, Mr. and Mrs. tion, court, found both Plainly enough guilty contempt sentenced them for it. Terry implicate judges personally, nor Terry’s contempt did not touch the simple physical actions counsel. It involved their attitude toward *30 judgment contempt judges. of three in full view the single a promptly upon events that constituted sentencing followed justice. In re See interrupting the actual administration brawl Law, 419; Swisher, Stephen Field — Craftsman the Terry, J. 36 F. 321-341. a pending trial, disposition by
decorous continuance of of a judge charge contempt impracticable. another Interruption for a before a would hearing separate judge disrupt the trial and thus achieve the of a purpose illicit contemnor.
But justice the administration of and courts as its in- struments are who be vindicated, lawyers might tempted try amply deterred, by to similar tactics are punishment assurance that will be certain and severe regardless imposes of the tribunal that it. It ais disserv- to imposition ice the law to sanction the of punishment by a judge personally involved and therefore not unrea- sonably to seeking be deemed to be retribution, however a a unconsciously, hearing at time when before a judge by any personal undisturbed relation is equally conven- ient. It punishment does enhance belief that is a impersonal vindication of law; fortify does not deterrent of punishment. function
Had judge here found petitioners guilty of con- tempt during the actual course of the trial a different problem presented. would be then, however, only Even compelling justify circumstances would a peremptory judgment of contempt. For justice while “Courts of universally acknowledged to vested, by very be their crea- tion, with power impose silence, respect, decorum, in their presence,” power that may thus be exercised is “the possible power least adequate pro- the end posed.” Dunn, Anderson v. 204, 227, Wheat. 231. Re- sort criminal without sanctions the usual safeguards in imposing punishment is to supported if only authority moral of a trial judge cannot com- mand order and if a firm respect, only reprimand calcu- lated to secure obedience would not halt an incipient course of misconduct. justice
Criminal is concerned with the pathology body politic. In administering the criminal law, judges *31 society. of instruments surgical most awesome
wield the the should have said, well it has been trial, A criminal judge presiding room. The operating of the atmosphere who umpire an is not He atmosphere. the determines merely a moderator game, a or rules of the enforces functions, to his adequate If he is contestants. between the will impose which he radiates authority moral the all upon austerity and dignity of standards indispensable trial. in a criminal participate who those to make as it is observation, painful compels the Truth prin- in the testimony of oral volumes the fifteen it, that judge the involving episodes record numerous trial cipal an undis- of suggestive are more counsel and defense solemnity and of the hush society than debating ciplined encouraged were Too often counsel justice. a of of court banter, repartee and dialectic, in with the court to vie the momentum to arrest inevitably copious in talk so respect of restraints of trial and weaken Counsel were lawyers. engender a should judge merely case not in a criminal understand made to Law is at itself individuals is stake. liberty of of God.” of the voice daughter as the “stern trial after the trial even proceedings, Throughout were counsel thought defense that he had indicated thereby to sub- seeking and were against him conspiracy of authority moral he to exercise trial, failed vert the indulged them, tradition. He great possessed court in lengthy playfully, sometimes resignedly, sometimes between court wrangles These speeches. incontinent intima- minatory punctuated by were occasional counsel warn- parental in the the Bench. As tions from case deprived them children, repetition ings feckless authority. phrase. no idle
To call counsel officers court law, espe- according conception justice Our whole daily justice, implies educated, responsible, criminal an independent Bar. Counsel are not freed from responsibility appropriate for conduct to their functions encouragements provocations. no matter what accountability Petitioners must be held to strict for the *32 contempts they committed. But until the inherent au- thority that should radiate from the Bench is found inef- in fective securing seemly by counsel, conduct there is no in peremptory procedure bringing need for drastic con- temnors to book even a trial. during History records too abuses to look many indulgently upon the exercise of arbitrary power. such And when the trial in fact goes completion, as without here, invoking summary convic- in tions, proves that itself for that there was no occasion departure from the of trying historic method criminal is, charges, opportunity after notice and an for de- fense before a judge. disinterested
It only
point
remains to
out the differences between
this case and two other cases now before
on
this Court
petitions for
(As
certiorari.
to the
disposition
desirable
petitions
of these
no view is intended to
indicated.)
be
States,
Hallinan v.
In
United
and MacInnis
880,
182 F. 2d
States,
v. United
found record face of the On the imprisonment. months’ hindsight boldness of more than the even require would be- reasonably could not have judge that the trial say of the disobedience immediate vindication lieved for his respect to secure necessary was the court’s order of the trial. during the remainder authority attorney— the other defense Later, February 1,1950, rul- after one of its addressed the court Maclnnis —thus yourself for miscon- “I think should cite ings: You anything like that. ... have never heard duct. after this re- yourself.” Soon ought to be ashamed After over- day. until the next mark the court recessed consideration, judge lawyer informed the night that a contempt and certificate his remark constituted with 42 would filed. in accordance Rule contempt order, again, prompt Here took action *33 a trial concluded, orderly to assure the continuance of he many go. had weeks to which still disprove Hallinan and MacInnis the Govern cases prompt for if the contempt, ment’s claim citation it, warranted would delay circumstances have caused in In disruption the New York trial. the California case by stay Hallinan remained as defense counsel virtue of a in the of a sentence; MacInnis, by post execution his ponement of his sentence until after the verdict in the fur principal evidently case. MacInnis abstained from in principal ther misconduct the trial of because the cer of tainty punishment, though mag he did not its know nitude. Either device was available to the trial in judge New York had he felt that only by prompt judgment a In contempt keep proceedings. could he control of the keep by fact he did order measures in short those used the At the only California case. end the trial the was or another question judge, personally whether he not involved, pass contempt should on issues that had impose punish- trial that had during ended, arisen a if guilt ment was found. suggested, however, judge
It is that a should be allowed here, to punish contempt peremptorily, judge as did the might long contempt after the occurs. Otherwise he to on the impelled, surprisingly argued, so act impulse losing inflamed of the moment for fear of Holli- opportunity punish the offender himself. The nan and suggest power Maclnnis cases the answer: to cite reasonable, is not contempt summarily by taking lost brief time for judicious consideration whether such drastic necessary Moreover, action is in a trial. pending guides right conduct which Mr. Chief Taft Justice in case, laid down and on I rely, Cooke which rest assumption on the judges federal undis- ciplined whose feelings creatures are their masters. Presumably they are responsible beings with cool heads. In any event, this Court sits to correct a rare occurrence of irresponsible action. Finally, urges Government hearing judge before a different give peti- would opportunity tioners another for harassing tactics, and that to subject the trial judge cross-examination and refu- tation witnesses drawn from spectators court-room would embroil the federal in judiciary damaging con- troversy. more the depreciates Once Government status of federal judges. derogates It from high con- ception which one should have of them not to attribute to the who would preside the contempt hearing capabilities those by which federal judges, especially non-jury cases, conduct proceedings effective, an *34 expeditious dignified manner, appropriate with con- trol over scope of cross-examination and the offer of witnesses. respect
Public for the federal judiciary is best enhanced by exacting high judicial standards of competence proceedings conduct of and by discouraging an assertion the usual demands of by which is not restricted power too often manifests failure of Process and which Due moral mastery. MR. JUSTICE FRANKFURTER.1
APPENDIX TO OPINION OF THE CASE, FROM THE RECORD OF PRINCIPAL EXCERPTS V. UNITED STATES. DENNIS going if I am to conduct Well, you think one why everybody an each inquiry as the reasons because you making big mistake, of the seats here going people am not to do that. There are lots of here who came for reasons are sufficient themselves. your Mr. but Honor will understand, Gladstein: me to at certainly permit your call Honor’s attention least to that I want to complain about, the facts even I am though going any- told that Honor is not to do thing permit me, you not, about it. And will will your Honor— n You know, Gladstein, don’t like crack. don’t know who told that I am not to do
going anything about this or that. (Pp. 73; 72— Jan. 17,
Mr. Gladstein: I think Mr. Sacher was referring to question of the hours that you want to sit today, the contempt published Since the whole certificate of ap- was as an pendix opinion Appeals to the readily available, in the Court of and is 416, 430-453, 182 F. 2d reproduced any part there is here not already quoted adequately record which has specifica- been in the specification tions of the certificate. Each should be examined in Appendix, appropriate point connection with this at the indicated specified episode involving contemptuous herein. Each conduct placed setting should be in the excerpts trial as shown the further reproduced here from the whole record. page printed references are to the record before this Court in States, v.
Dennis United
two men who they are attaches of this are bailiffs. court, Court: But they always every at crim- there, inal trial.
Mr. Gladstein: Your Honor, you haven’t heard me I yet. have no objection, precisely. If I
The Court: seem I impatient you am sure it very is a misleading impression.
Mr. Gladstein: I accept that, your will with Honor, what I think you 146-147.) intended to convey. (Pp.
The Court: ... you think squeezed have all the juice out of that particular orange.
Now, why don’t get to the merits of claim the judges here should not try this issue. Mr. Gladstein: If you permit me, would your Honor, to carry forward a little bit the allusion that you have just made, which happens to be closely identified with the State from which from come, which the citrus fruits product— are a
The Court: No Californian ever misses the chance. (Pp. 207-208.) If you mean that applicable me, as
say I don’t know anything it. about don’t. I haven’t the remotest idea how juries these are got together. only been on the bench here as know a short time. Honor? been, your has it long How
Mr. Gladstein: great day, 1st, 1947, was Well, July it. I remember *36 and a half. year a Well, that is over
Mr. Gladstein: (P. 212.) years about ten happened But what
Mr. Gladstein: into the system to throw that that it was decided ago was system it a which substitute for speak, to and to ashcan, so democratic, fair, truly representative; opposite is the in- as our affidavits show: place, took and this is what of all— well, first stead — thinking, I where is all this time am
The Court: Now a kind of udice ? What prej bias ? Where that, about think[ing] I am specially? must have init mind. got and doubtless your Honor. certainly have, I Mr. Gladstein: (Pp. suddenly. on it too creep up The Court: Don’t 238-239.) attorney practicing You as a
Mr. ... Gladstein: and States Supreme Court United stood before jury a democratic necessity having spoke about York. of New system in the State that I it the fact understand Court: And now that shows jury system fought for a democratic then fit to sit here am not is so biased my mind me. to a inconsistent That seems little your case? hear don’t please please, If Honor your Mr. Gladstein: I am what say, because of what meaning distort or thereabouts ago months that 18 is: the fact saying demanding Court Supreme before your Honor stood system jury an vicious kind illegal, that it condemn your months that for 18 plus the fact courts, the State Honor has sat on this bench the Federal courts has in operation system eye seen which to the naked reveals the kind of discrimination and exclusions that have been taking place nothing Honor has done about (P. it.
The Court: Mr. suggestion Dennis has little you there that Mr. looking Sacher is at. think he means give you.
Mr. Sacher: No. a private This is communication. Thank you. had no idea of Mr. desiring it, see
Sacher. IOh, Sacher: understand that. *37 I thought
The Court: he intended it for Mr. Glad- I I attempted stein and to do what was a thought cour- teous thing calling his attention to it.
Now, please, try things don’t to misunderstand like that. You that I I may say things say assume when them in good faith. I I otherwise, have no desire to do and think will you gentlemen recognize do better to that.
Mr. I get Sacher: don’t like to the the feeling clients are under the surveillance of the Court. Well, all right. sorry you
The Court: am take way. (P. 244.) it that key Gladstein: The to the difference between you just said, your
what have and I am Honor, what contending magic phrase consisting is a little of four slipped words that into that last I think you statement. — n justification”- “regardless was I don’t think you ought say “slipped The Court: you in” now. meant that gather colloquial expression way. a nice say Everything yes. Oh Mr. Gladstein: Honor. way, your nice meant always Court (P.247.) I know. The Court: a few min- say Honor I heard ... Mr. Sacher: banker. like a did not look witness ago utes a mechanic. look like did not No, said he right. All your pardon. Oh, beg Mr. Sacher: what this, that at is get I want to point Now, the with are concerned Court Supreme decisions workers many I have seen appearances, more handsome sight a darn who look mechanics fat bankers. a lot of than pleasant personable more of how question into the go weWell, won’t so out not come might is. We everybody good-looking that. well on (P. be. may That
Mr. Sacher: 884-385; pp. in Specification involved ('Conduct II2 — 81, 1949.) Jan. would I don’t think Well,
Mr. Sacher: You the trial. with anything do if had him called thing. any to do such lawyer good too were *38 2 deliberate, wilful, generally “a charged I Specification Since II trial,” Specification the delay obstruct effort concerted See principal trial. contempt the in specific act charges first reproduced record trial portions of the The 2d at 431-432. F. of their give, because contempt certificate specifications in places in The the trial. picture of brevity, only a mutilated in order indicated contempts are alleged occurred where the record to the in relation may viewed contempt incident of each here. excerpts forth set record flattering to have Well, quite Court: it is The glad I am to hear lawyer, about me as a keep talking are favor- subject long they on the as your comments preserve my equanimity any if I will able. And (P. event. reopen
The Court: You can the matter of considera- I tion when hear from Mr. who doubtless is Isserman something importance just about to add moment. Mr. I object your Isserman: Honor’s remark. think respect it is sarcastic. It doesn’t show the that this object Court should show to to it. counsel. IWell, disrespect intended no to counsel.
I will listen to what you say. have to
Mr. Isserman: object once more Honor’s ruling represent matters in this affecting clients proceeding hearing my position respect before to those (P. 404.) matters.
Mr. McCabe: . . . take, instance, Just an em- ployee of the Company. McGraw-Hill The fact that he got a salary somewhat less than I do not think $5,000 put would him in the class of those whose out- economic look or whose economic would philosophy be at variance with expressed by An employer. of his em- ployee of the National Association of Manufacturers might very well be drawing salary which would, under arbitrary rule which just toying we are with here— say don’t we are setting up arbitrarily, but we have tried to come around—(cid:127) You certainly Court: toying with it all right. Well, maybe McCabe: it will my grand- be like toys with toys
child—when she there isn’t much left of toys after about ten minutes. *39 all surviving right. I to be Well, seem The Court: 428-429.) (Pp. trial in all not the . . . After this [is] and the situa- challenge, preliminary
chief. This is the I it I should take suppose tion is a little bit different. about it. hastily I do not want to act under advisement. say my study I that of this record this interval must put my time mind me, indicated to has the first has thought of a series of concerted and deliberate moves exceedingly I am to take the delay the case. reluctant that, by would do and even any lawyer press view that morning— this this occurrence I that deny Mr. Sacher: would like we have ever doing now, your done it or that we are it Honor. I put thought my have from mind but I will present, say for the rather difficult situation that has been brought up here the conduct (P. of counsel.
Mr. I Crockett: ... think the Court is aware my arguments usually short pretty point, and to the though confess they any must have not been too con- vincing Honor—
The Court: Yes, much better than Mr. Sacher Mr. Isserman who well, have shall I say, prolix been — and vociferous and repetitious, good taste, but all listened, although must say, as said a few mo- ago, ments that the thought finally has my entered mind that all this business that going just has been on is a series of wilful and deliberate for delay. maneuvers Sacher: resent that and I deny want to it once again. (Pp. 467-468.) *40 wood the Honor told us saw
Mr. McCabe: Your day. other
The Court: Yes. the sawdust
Mr. And it seems to me that McCabe: a sawing in are wood little getting somebody’s eye. is We rapidly. bit too you per- If mean that that have you
The Court: entirely mistaken, in an ill are haps got humor, you me I no I very pleasant genial, because feel if feeling all; you at so thought desire or no disturbed perhaps that attitude was by your my meant comment you or I think are mistaken. changed different, all, your Mr. I did not infer that at Honor. McCabe: you The Court: did mean? What get- I sawdust was said, Mr. McCabe: What that the somebody’s in ting eyes? talking eyes you
The Court: Yes. were Whose about? in- anybody
Mr. I who is say eyes McCabe: jurors a which defending system terested selection I Honor— say this, your we claim it to be. will is as it, I take you my eyes, The Court: But did not mean no. Now which you? say yes did You could either or it? flying Mr. when starts Well, McCabe: sawdust guess gets everybody’s eyes. around I you The Court: So didn’t mean me? say I not. I will No, say McCabe: will did if I Honor,
this: Your walked into this courtroom sitting that of that are legs you told chair fall, and were about to or if said that this were cracked system and that the whole big it, wall had crack looked bad— It wouldn’t me. scare Honor your If said (Continuing):
Mr. McCabe with wrong things serious there were other perhaps of the court- aspects physical courtroom, just this assuming far off in I am not think that room, made to investigation to be the fullest Honor cause would yourself— not of safety, physical see big, making That is where like water my roll off back mistake. It would per cent legs at the not even look duck, off a and would (Pp. 573-574.) chair. *41 the order regulating
Mr. That is not McCabe: everybody looks, as it your Honor, just when proof, our proof absolutely supports initial realizes, that on off and shunted suddenly then we are cut assertion and ex- orderly procedure that our way; to some other dis- suddenly our is peditious procedure proving case indi- say certainly I rupted by your ruling. Honor’s part. Honor’s your cates some fear any I If Well, you have no fear. have The Court: may put I am that out of impression you that afraid fear, I your entirely, any mind because have not felt afraid, I that I was only my can remember once life I am afraid, and I am not accustomed to be If just drop subject. you afraid now. So can that I afraid, want to know what one time was that was I will sometime. tell
Mr. picks up McCabe: Your Honor the word “fear.” (P. I to the word then. get “bias,” would like back expressing You have a way The Court: curious say the least. yourself, Perhaps Sacher: may but so, Honor,
unfortunately can express myself in no way. other And I would like, if your Honor would enough be kind indulge me to refrain from personalities that I may so develop what regard as a most important argument on this question,—
The Court: You ask me to refrain from personalities? Mr. Sacher: I think so. You just accused me— For what purpose? in no indulged personalities.
Mr. Sacher: You said I have a way express- curious ing myself.
The Court: Yes. You said the United States Attor- ney had guilt. confessed his I considered that—(cid:127)
Mr. Sacher: I did not use those words. I said he amade guilt confession of and stand by that statement.
The Court: Well, that no personality. That is a comment on a sort of argument think is out of place and not helpful.
Mr. Sacher: All right. (P. 607.) . . . But you have made so many chal- lenges of bias and prejudice and said that every time I *42 ruled against you there is something about it that is abnormal, so I have been disposed to let you go on. But I think the record has indicated an amount of repetition that utterly is unprecedented.
Mr. McCabe: Your Honor, when the demonstration of the bias is repeated objections to it must [by] necessity be repeated.
The Court: Well, you may, as I said before, you may challenge my bias prejudice and just as often you think you should.
Mr. McCabe: We shall, your Honor. IBut should that. at umbrage no I take (Pp. well. pretty ground that had covered that
think 612-613.) that happened have things many Well, so Court:
The hardly consistent record, that over back I read seem, as and deliberate a concerted other than anything with that told I have But delay. effort to wilful it out put I have andme to merely occurred thought to have some- want I wouldn’t present. for the mind my under- to fail anyone have along later come thing been has of what interpretation is this there that stand it interpretation; right it is say I do on. going thought that is say I do all And not be. well may out. it put mind my into came time first for the at 10.30. morning tomorrow until now adjourn we So however, record, on the to state I want Sacher: Mr. Honor said. your deny what that Sacher. shout, Mr. need to You don’t Court: I resent— No. Sacher: oc- Court address possible It is shouting. casionally without is manner quiet in a Honor Yes. Your
Mr. Sacher: headlines in certain result will point which out picking make I want record For the morning. tomorrow any- do and will never nothing done have clear And this case. progress hinder the delay or thing done case in this any other counsel I or whatever to the achievement solely directed been has or has done bad. system jury this of proving the end no justification there is Honor, think, your IAnd toas the observation with session every day’s closing concern- mind Honor’s entering was thought what (P. mind. our state ing
The Court: Now a little incident occurred this morn- ing about I which will have no mystery. Due to the
numerous communications of one kind or another that have been arriving up at my my home wife came down here this morning. I I suppose should have told her to, and it is my fault, but she did. And, then, there was a little disturbance here due to a woman who saw the empty seats over on the side where the press have their location and she she felt was to go entitled there and made a little, slight disturbance with the bailiffs. And my so sent wife this note to the police which reads, “Tell Detective guard Mitchell the Judge at lunch hour.” And as the messenger proceeded with the note one of the reporters alert was get able to a hold of the note, and so the rumors started around the building, and goodness knows where they else gone. have
As to the woman who desired to sit on the other side where the empty seats I are, noticed the matter sent a little communication of my own to the bailiffs to tell them to leave her alone. I thought she was right. I saw her during the recess hour in my chambers, and told her that I thought she was right, and that while those members press were not occupying the empty seats perhaps it was only reasonable to have the last row at least made available to those who waiting were get in.
Now, that is all there is to it. There is no mystery. There is no danger. I haven’t slightest felt the concern about the communications I have been receiving. And there it is.
I have no notion any of those communications inspired been by the defendants or by any their counsel. do not feel am in any personal danger at all. But if I am wrong, shall face the risk calmly and I shall do my duty. *44 that everyone to apparent it is perhaps I think
Now made have been that the accusations of the character extravagant and day to day from me here against but twice or made once been only not have that charges cause may loudly well and emotionally and repeatedly wrong aget to or others people poor and misguided some what justice administration of the impression an myself opinion great no have I doing. I am which the office respect great have I do individual. but poor, not the rich, not here represent I hold. of the of the Government majesty people all the I am that and cognizant am And I States. United fair ac- and to just to be can, best I to do trying suppose mistakes, may make my lights. cording my best. do only I can do, but often the trial. with may proceed You too, both we I think please, Court If the Mr. Sacher: a received counsel, have and defendants’ defendants ourselves, against of violence with threats letters series of I returned when Indeed, our children. our wives greeted wife morning my this at one o’clock home my with several but detective, a note with me, not letters. may your Honor say in passing
I might they were I am sure that notes. crank received in that connec- did. And said or by anything we inspired are con- the defendants far as say so may tion notes. than crank more much received they have cerned I pointed arguments one recall You will out— difference— tell the you can glad I am
The Court: Honor— n your Will Mr. Sacher: be- tell the difference you can glad I am disposed am not But I others. note and tween crank everything. about argument to have Mr. Sacher: I know, your Honor. May Court: pass we not even this incident with-
out extended discussion? (Pp. 664-665.)
Mr. Sacher: Mr. Gladstein, now we you. can’t hear (that Now is a strange accusation, [sic] Mr. Gladstein, because voice very penetrating and *45 pleasant.
Mr. Sacher: Why, your I Honor, must say, however, that I did not hear Mr. Gladstein. He speaking was so softly. I don’t doubt it. That is all right.
Mr. Gladstein: Perhaps the newspapers should take They note. have been saying that I am very loud and brash, and so forth, but it does not really matter to me personally, your Honor.
The Court: No, we must not worry about what the newspapers say about it.
Mr. Gladstein: There would very little to enter- tain ifus we took too seriously what some of say. them
The Court: You I know, have often I felt, as have expressed often myself here, that it is better not to be I stuffy. try not to be.
Mr. (P. Gladstein: All right. 667.) Mr. Now, I Gladstein, know all about leading questions, and when the Court his discretion them, will allow and when he won’t. you go Now ahead and lead him necessary. as little as
Mr. Gladstein: don’t have to lead him all, at won’t, your Honor. get not just It is right. all That Court:
The I know Because it. about argument unnecessary an into tried probably I have leading questions. about plenty (P. day. my myself of them few upon insist shall ask ... we Sacher: Mr. in order— records those explore necessary to the time expression not use that would you I wish Court: The upon.” “insist is all. urging, means That Sacher: time. all the it use know, you You Court:
The I think all the time. it do don’t Mr. Sacher: Honor “all the time” indicate should record once. means instance in this “all expression I used when Perhaps Court: anyway, But, sense. in rhetorical time” used insist will understand like to
would upon nothing. *46 that. urge will Well, we Sacher:
Mr. (P.884.) be done. what is to I will rule The Court: your make, just one observation I have Sacher: Mr. very com- is a speed delay. While concerning Honor, one, and a greater is justice I think objective, mendable if it be— ofme remind you Well, is nice to Court: The that. Honor? that, your isWhat
Mr. Sacher: me remind you to have it is nice say, Court: (P. of that.
Mr. Gladstein: . . . very plain Now it seems to me that Mr. McGohey toying is here with possibilities. This witness or other witnesses—
The Court: Well, he got competition has some that.
Mr. Well, Gladstein: we going are not to let him toy. very We are serious about this. Oh,
The Court: Iwell, know.
Mr. Gladstein: quite We are serious. The Court: You take over the courtroom any time, but I am here running court, you so don’t say, as Mr. apt Sacher are to do: you insist on this and we are going to do this. You are going to do what tell to.
Mr. IWell, serious, Gladstein: am going remain regardless of what Honor tells me.
The Court: That right. (Pp. 931-932.) ( n Conduct in Specification involved pp. 988-984; III — 8,1949.) Feb.
(Conduct in Specification involved pp. 1084- IV— 1038; Feb. 8,1949.)
Mr. Gladstein: . . . Now, although everybody, one would think, who did not prejudge the matter here— I deny Well the motion>to disqualify me. Well, you Gladstein: were anticipating. wasn’t going to make one. very quick am on, thought to catch “anybody
when said who prejudge,” does not it was *47 just way another of telling again you me what have told me so many times, your and told me so colleagues have many times: that have it that am prejudged all; I am Now, to sit here. unfit and prejudiced and biased get to going are you if think you and that, with familiar big making you are again, over that saying me excited mistake. again, it over say going I wasn’t Gladstein: you getting of purpose for the it not
if were would ques- mind on the I have definite It is true excited. you whether disqualified, are you legally whether tion of it. express going but I wasn’t biased, the United up to way all went They Court: The if there suppose it, with Court Supreme States that. do would go, you could further any was bias. Honor’s your on pass They didn’t Mr. Gladstein: unbiased— were say you did They not for certiorari. application They denied question to hear refused Yes, they Mr. Gladstein: that but true, biased, that is you were not or whether favorably they passed Honor, that mean, your not does mean, It does of the Court. the contention but neither biased, were that they held course, unbiased. you were held they it mean does rub- keep need really you don’t Well, prejudiced, I am day that every telling me in and bing after thing, because sort corrupt, all biased, times number names a certain has been called a man 1034-1035.) (Pp. more. any himon effect they have no 1049-1059; pp. Specification involved (Conduct V— 8,1949.) Feb. 1085- pp. Specification involved
(Conduct VI— 1092; 4, Feb. colleagues see, you and Well, you Court: in criminal technique a new adopted apparently
cases by which instead of the defendants who are indicted being tried, the Court and all the members the court are the ones who must suffer the excoriations and accusa- tions counsel. But I think, perhaps, patience with there will be an end. So will please let the matter drop there, and Mr. Isserman will proceed with his ques- tions.
Mr. Isserman: I will proceed, your Honor, but am again constrained on behalf of my object clients to your to Honor’s remark characterizing the questioning which am indulging in, or suggesting that a questioning is stalling and delaying tactics, and to the description of this challenge a jury, to which under the law right we have a to make on behalf of our clients, as a new technique— (Pp. 1090-1091.)
The Well, Court: perhaps we had better let one each of the counsel for the say defendants a word or now, two they because look as though they to desire state their positions too.
Mr. McCabe, would you like say something?
Mr. McCabe: I had not intended to say anything, your Honor, but as long as your Honor invites it would like to express thought that has been going through my mind for several days: (P. 1091.) might Court: It be prejudice, suppose? No, McCabe: it has become clear to me your that Honor is doing the very same Your thing. Honor constantly referring to our tactics as delaying tactics; by referring to evidence which seems to me to be clear very and precise, being confusing, and referring gaps the testimony think that your Honor seems to have —I in his doing mind the very thing you, I which think un- It seems doing. might we indicated
justly, repetition constant words, Honor’s me that dragging tactics, and delaying techniques new our is addressed— on, that rambling out things now little ramble I do maybe Well, *49 privilege may I think that then, but' 1092.) (P. Court. involved, pp. Specification
(Conduct 1184— VII — 4, 1949.) Feb. 1141; Honor. your you, Thank
Mr. Gladstein: something that out just pulled I have random — jurors— picks he do when not does court in this clerk two— that, your Honor. I to strike move McGohey:
Mr. hope I part. hear that did not even I The Court: 1569.) (P. good. anything it wasn’t Honor’s your object I sorry, I am Mr. Isserman: for. wholly uncalled It is again. remark want, objecting do all the may You The Court: to have going arewe this court running I am but 1574.) delay. (P. this interminable 1660- pp. Specification ('Conduct involved VIII — 1671; 14,1949.) Feb. becoming positively Sacher, you Mr.
insolent. stating— I am I not. Well, am
Mr. Sacher: INow won’t have it. Mr. Sacher: am stating what your Honor seems— The Court: You have charged me with about every- thing that a lawyer can charge a court— Sacher: am making no charge—
The Court: You are charging me by this innuendo of some sort connivance with the United States At- and I torney, just will not any have more of (P. that. The Court: Mr. Gladstein, hope am misunder- standing the purpose of that comment. It does not seem to me that you needed to do it. It seemed to just one of those little fishhooks in that you so often sprinkle conversation, suggest them, omit possible. if
Now, you have been allowed every reasonable latitude *50 here, and it is my intention give to you every reasonable latitude to bring out whatever you want to bring out—
Mr. Gladstein: Very well. The Court (Continuing): But I cannot continue to do it indefinitely, and if I get the impression that sar- castic comments and criticisms of the Court by innuen- does are being dropped in here and there, it is perhaps going to my affect discretion somewhat in the rulings I make on the extent of your cross-examination. (Pp. 1813-1814.) you Do wish to make a motion that dis-
qualify myself for prejudice, you as have already made?
Mr. Crockett: I want to reserve the right to make such a motion, your Honor.
The Court: You have it, made I suppose, you and your colleagues, I don’t know how many times, and I and I am biased charge you all understand we think 2094.) (P. else. everything and corrupt and
prejudiced 2097; Feb. ( n Conduct p. Specification involved IX — 18,1949.) thought all abandoned course, you Of Court: you ago here because long colleagues, your and
that, you prej- bias, corruption, again with again and me charged system with do something to having and udice thoroughly I understand So to do with. nothing had that. help Now, can’t me. about think you what go to want you ifSo I can. as duty best my do must It it. do and names, go ahead m'e more some and call it, see duty part within may come I am not case, relevant it would certainly anything me and call right ahead so stop you, go going (P. you want. is concerned the Court . . That .
Mr. Gladstein: the fact from of time evident consumption with the minutes, perhaps 35 or 40 or past during me at- preceded who attorneys four as each longer, Court objections, his statement present tempted purpose for the interrupted frequently constantly of— like here to sit going I am expect If *51 that are make they statements while log bump
a on a it. I won’t do now tell so, can absolutely not I desire— Mr. Gladstein: of that heard ever is no rule Court: There flay attorneys while to sit silent supposed him.
Mr. Gladstein: I desire to make an orderly, logical presentation of what I have to say,—
The Court: Go ahead and do (P. 2099.) it. Mr. Gladstein: Your Honor, I would like to finish my statement for the record. I wish the record to show my objection to the tone and the manner which the Court delivered that command as unbecoming Court, and I object to it. I also—
The Court: There is nothing unbecoming about it. I am through being fooled with in this case.
Mr. Gladstein: Now, if your Honor please— If you don’t like it you can lump it. Put that down.
Mr. Isserman: I object Honor’s remark and characterization of the conduct of counsel, and ask that your Honor strike that remark.
The Court: Oh yes, yes, have heard all that. Now I am sick of it.
Mr. Gladstein: Now I wish to add to my-objection the unseemly remark of the Court saying if we do like it we could lump it. I object to it and ask the Court to withdraw and strike that statement from the record. IYes, refuse —I deny the motion. (Pp. 2276-2277.) ( n Conduct in Specification involved pp. 2383- X—
2385; 28, Feb. (Conduct involved Specification p. 2404; Feb. XI — 28, 1949.)
Mr. McGohey: Well, it is a dishonest question, your Honor, and that is the basis the objection to it.
64 (P. style. best Mr. in Gladstein’s It is Court:
The 2490.) 2528- pp. Specification involved XII —
('Conduct 1, 1949.) 2529; March request right, . I desire . .
Mr. Gladstein: made inventory have an us it, grant the Court taken are they before envelopes of those contents times, at leave also ask willWe permanently. from us of those— n copies make Court, to to the suitable in- Gladstein, you realize, you Do exhibits of those possession I have sinuating that of them? destroy some will (P. insinuation. such no I make
Mr. Gladstein: about funny nothing really . . There . Mr. Sacher: this. a little only it was thinking just I was Court:
The ain book Knox’s Judge talking about were ago you while is all That that. do But can way. different rather right. of fact. is a statement But this
Mr. Sacher: when smiling stop going I am does Mr. Sacher just to smile because occasion see some it. not like smiles. welcome not the smile. It is
Mr. Sacher: ought think but don’t deal, a good indulge them I think it is levity with because argument this to treat 2640-2641.) (Pp. important question. an process then, by . will usual . . Court: We in the wheel, put jurors out of the names selecting jury box, but the questions will only be not to them but to the others who may sitting the courtroom. Oth- *53 erwise repetition of the questions will be such as to utterly wear me out, or anyone else under the circum- stances, utterly and be unnecessary. (P. 2665.)
The Court: you Well know, it so easy seems Court to send a letter. My pre-occupations now are such I that simply could not do it. It is hard for to people realize the burden I that have been carrying here and the many details of one kind or another that I have to take care I of, and don’t think it would be proper for me to do it but anyway, the main question is whether there would be special some hardship to you. (P. 2707.)
Mr. McCabe: I just want to give you the citation. It is Farnsworth vs. Sanford [115] Fed. (2d) 375.
The Court: Thank you. glance Let me at this, but I can tell you all that I am not going to dash off any determination on some question law by at a glancing case or two on spur of the moment. I don’t like to see judges do that and I don’t do it I myself. tried give here to every question that up comes careful con- sideration, and that has been one of the things that has been wearing me out here because have been getting propositions of law in rather close proximity to one an- (P. other.
Mr. Sacher: It is very strange that the occasions you when your scratched head and pulled your ear, we were speaking and not Mr. McGohey.
The Court: Maybe you were not watching me. at conduct your that say want just Sacher: again. it doing you are see, you
all times — I am cor- say are going know, you allme those called You disqualified. I am rupt again catalogue run can Now things before. bad as just Make patiently. listen and will can. aware of certainly I am Honor, Your
Mr. Sacher: Honor against false witness if I bear fact disciplinary subject I am I have said anything measures disciplinary inviting am measures statements. making false disciplinary take I will mean You my I scratched you said you because against
measures *54 absurd. Don’t be Mr. Sacher. absurd, Don’t head? every in is that making I am point Sacher: Mr. your jury to the conveying Honor is your means available their defendants, to the hostility if not sympathy lack of in these circum- case, presentation counsel’s my clients on behalf note certainly to want I stances I wish conduct Honor’s your to objection vigorous a mistrial to declare motion Mr. Gladstein join to juror. aof the withdrawal by 3316-3317.) (Pp. denied. Motion The Court: about nothing unusual . There . . Mr. Gladstein: to the Court we ask it, and we make that request to it. consideration some really give that there, “really,” that word know, You The Court: sly insinuation little put You way you do. is the really I haven’t heretofore say as much in, 3332.) (P. any matter consideration. given the remarks move Gladstein: enjoyment— just concerning made sneering and snicker- smiling, them The Court: see it as well. jury undoubtedly there. The sees ing If please, a minute. Honor your Mr. Gladstein: Just on the assign prejudicial those remarks as misconduct I assign your of the Court. as misconduct refusal part objection. to make an permit me The Court: When did refuse? at the By your interruption present
Mr. Gladstein: I am as- time and the misconduct which pyramiding jury— I ask the Court to instruct signing. you may go You now told that ahead (P.
and make remarks extenso. ( n Conduct Specification pp. involved 89/$- XIII — April 4, 1949.) 8948; I am am I Honor, allowed, not,
Mr. Gladstein: Your that, as a assign as misconduct remarks of the Court lawyer, think constitute misconduct? You me all want. may attack *55 what I
Mr. Gladstein: That is not said. guilty that I have been may The Court: You claim nature and de- judicial every name, misconduct take no offense scription, your right is shall —and at it.
Mr. remarks and object Gladstein: to the Court’s assign the Court’s last remark as misconduct. Very (P. 4028.)
The Court: well. (Conduct in Specification involved pp. XIV — 4058- 5, 4059; April 1949.)
Mr. object Crockett: must to that statement, your Honor, suggesting to Mr. get Gordon how he can what he seems to be troubled getting about out of this witness.
The Court: Mr. Crockett, it is the function of the Court justice here to administer which am to do trying to the best my ability. Now must know that such you just comment as right. made not Crockett: But think appreciates the Court fact—
The Court: Now I standing have been for all kinds picking byme lawyers for the defense here and I am going any great raise issue about this one, but I really really think if it gets point to a where —I Judge may not indicate what he proper thinks is the thing to do, it has reached a strange pitiful state of (P. 4177.) affairs. (Conduct in Specification involved pp. XV— 4®®8-
4229; 7, April Mr. Gladstein: IMay call Honor’s attention to the fact that you just because took umbrage at an ob- jection which Mr. Isserman made as a lawyer— I took umbrage. no
Mr. Gladstein: —you then reacted— I suppose you begin— Mr. Gladstein: IMay finish, your Honor? The Court: —to talk my about inflection of voice— *56 your talking about I not No, am Mr. Gladstein: inflection. at all. umbrage any taking I not But am
The Court: Honor— But, your Mr. Gladstein: long-drawn- a to have going I am not But The Court: me. clear perfectly that is something of out discussion 4403.) (P. my handling Honor’s assign your I
Mr. Gladstein: as misconduct. objection charges used to these getting I am a case been has ever think there I don’t
misconduct. made been have of misconduct many charges where so (P. little foundation. with so pp. I¡787- in Specification involved
(Conduct XVI — 19, 1949.) 4788; April that evi- Honor to strike ask
Mr. Gladstein: Honor’s before, your I did assign, also dence, and will impression gives it because as misconduct statement there can- which relationship, possible that there is some charges and the this kind statement be, between in the case. is inad- evidence that the How can rule that inference necessarily giving
missible without rules Judge time every And the case. bearing has devel- gentlemen that the doctrine way, Now misconduct. judicial is here oped saying calling me names and from lawyers stop can’t I am prejudiced, and that misconduct judicial guilty am *57 keep that this, thing, and that and the other and can all I take up home; right, until the cows come that is (P. 4799.) no at it. umbrage smiling all of the defendants are Why broadly.
Defendant Why certainly Gates: we are.
Defendant Potash: we Certainly are. getting country The Court: We are back to that club atmosphere again. Well, going any there isn't to be in country atmosphere my club court.
Mr. Gladstein: a man something When hears that is ludicrous and absurd to I suppose the extreme he is permitted the human reaction of a of contempt. smile
The Court: That in to me is the same line as some of the comments we have had in past. may It seem very funny to the They enjoy defendants. seem to it, but I is, don’t think it and their laughing going is not any (P. 4805.) have effect.
Mr. Gladstein: That get. is what we Your Honor why asked people smiling, but there an to it. irony is I had occasion to put stop to some of I am before. familiar with practice criminal trying cases of to laugh something off, and I am going anything but order in my court. When the de- fendants get hilarious and start laughing smiling that sort of thing going to be stopped. put You can in your (Ibid.) book.
(Conduct in Specification involved p. 4807; XVII — 22, April pp.
(Conduct Specification involved 4829- XVIII — April 22,1949.) 4884, 4860-4861; If I would like to please, Mr. Isserman: the Court that the judicial to take notice of the fact ask Court years. He was Haym man Solomon is dead some several Revolution. figure the American The Court: This is the first time ever have become gentleman. with the don’t see what acquainted *58 way has to do with it. You Communists have got all taking kinds names. your I and ask object
Mr. Sacher: to that remark to jury that and to direct the Honor to strike remark disregard it. I will deny
The Court: the motion. Mr. the remark was say Gladstein: wish to to the defendants and derogatory intended to be way. object other any couldn’t have been intended to it. You done a lot of—
The Court: have than objection Mr. I would like an rather Gladstein: engage repartee. an invitation want me objection you The is the Court: What to rule on? Honor is that objection
Mr. Gladstein: for a improper inappropriate, a remark which is made in a trial to because it was intended Judge sitting make the defendants. convey against some kind slur story. Mr. Is- Well, it is the old you The Court: see quiet if I say and has his remain gets up serman everything is fine. eagle place all over the you spread let judicial misconduct. say something minute I it is But the by out I made was well borne the statement thought there it is. Now it, objected you record, 4956-4957.) (Pp. that. that’s pp. in Specification involved ('Conduct 4968— XIX — 25, 1949.) 4970; April may I correct one state- Honor, Your
Mr. Gladstein: inadvertently? I think the Court made ment that you any statement may You correct for the me alone you had better leave made. think (P. 4970.) being. time to read. proceeding am now Yes, that, your very glad I am to notice
Mr. Crockett: Honor. that, Mr. do mean
The Court: What Crockett? my benefit. I take it said it for Crockett: *59 I know that you at me and wanted to directly
You looked I it. had heard at and directly you I did not look Well,
The Court: all of the counsel I did not mean that for but for watching defendants, sedulously for the who seem to be things at and looking papers and the time use clocking of that kind. impertinence. I consider that an
Incidentally, I am at and may assumed, looking papers, It when having on without counsel them, them, rule that read 5132-5133.) (Pp. make remarks of that character. very is that this thinks Mr. Sacher Mr. Gordon: funny. I do.
Mr. Sacher: ques- no There is fellow. great is a He The Court: about he thinks of what more indication give tion he can and laughing giggling. and tittering on the be stricken that that move Mr. Sacher: on founded and not unwarranted utterly it is ground solely as a diversion. record be an- intended I take it that that
The Court: You are Mr. Sacher. motives, my imputation other (P. case. in this yourself record up quite piling 5256.) 5302; May p. Specification involved
(Conduct XX— 2, 1949.) 5526; May p. in Specification involved
(Conduct XXI — 4, made Honor your that The statement
Mr. Gladstein: it carried. and innuendo implication idea what I haven’t remotest The Court: about. talking tell happy you. very bewill
Mr. Gladstein: ahead. Go to ask rose attorneys One of the Mr. Gladstein: ques- distorted that Honor of the Court question which purpose question, another by asking tion question implication an convey towas im- attorney was indeed that the improper, was attorney on the Court’s reflected something that pliedly stating make opportunity seized that and the Court motives kind of innuendo. Pretty ingenious. *60 Mr. Gladstein: It was; but not mine.
The Court: You are trying to throw some im- more putations on my motives and showing what I thought place first was evidently justified. well (P. 5700.)
Mr. Gladstein: Your Honor, my assignment of mis- conduct was at the remarks of the Court, and therefore submit it was improper for the Court in making giv-—in ing any instruction to the jury on that subject, to do so in the manner your just Honor did, assign therefore remarks as misconduct.
The Court: Well, I must be very bad, all these mis- conducts that you have charged, say must it is very (P. sad.
The Court: No, you may not have them marked. They may be submitted at some later time if desire, but I am not going to have them submitted now for publicity purposes.
Mr. Sacher: I object to that statement. These are not put in for publicity purposes. put This is in to pro- tect the rights of the defendants. I think that is an improper remark.
The Court: That can all be done without having all this in the record now. That is my ruling for pres- ent. Later they may be properly identified. I have had experience with a lot of prior things that surprised me.
Mr. Sacher: I object to that remark.
The Court: You may object your head off. Mr. Sacher: object to that one too. It is highly prejudicial to the of all interests the defendants *61 think it is not observant of the due decorum of a court- room to make references, these your Honor.
The Court: Yes, that is right. (P. all 6116.) Mr. Sacher: I object this, your to Honor— The Court: Overruled. Mr. Sacher, will not hear from you further.
Mr. Sacher: —unless the time and place are fixed, your Honor.
The Court: Overruled. You needn’t smile and sneer at me that way either.
Mr. Sacher: I wish to state that I did not sneer or smile.
The Court: I am not going any more of that than I can I will help, you tell that. (P. 6118.)
Defendant Dennis: Is your Honor to intimi- trying date the defense and counsel for the defense? I am afraid I am not very in- good at
timidation, but have had a lot of it tried on me in this (P. case. 6130.) (Conduct involved Specification pp. 6262- XXII —
6268; May 19, 1949.) Defendant Dennis: Yes. I would like present my point of view here. When begin talking about a mockery
of justice and that, you all know, you expect cannot me to sit here like bump on a log and hear call me names without saying anything. I don’t like to do that. names. more me some call now and go ahead
You (P. say that I would And . . .
Mr. Gladstein: application determining consider should Honor question this has cited Mr. Crockett law this in the course made this Court statement *62 has Honor Unwittingly very question. on this trial jurisprudence. to contribution singular amade perhaps You “unwittingly.” for that you Thank 6331.) (P. Mr. Gladstein. something, really many great in a I have been Sacher, Mr. I have in one—and been I never have cases. criminal so too—where important, very that were many been mo- on a on arguments taken counsel was time much case— Government’s at close to dismiss tion here. the time taken approximated that even one never ap- all gentlemen as assume, you would if course, Of and an automaton as just sits Judge that pear to, study or anything, or notice this, all not hear does then he comes and that any law, up or look all, at matter uninformed wholly case the close Government’s to further facts, perhaps then to the and as the law as to this case I needed, given have but might argument morning early it from I have attention; studied closest I authority every I have studied night. at late until amount I feel that on, lay my hands could than been more here has I permitted have argument that adequate. I your Honor, say IMay this
Mr. Sacher: mean simply statements your Honor’s think that in our place courts. longer has advocacy no Mr. that, have told me Well, Court: more pleasant way his has made it even Gladstein gen- I done in plain; but, course, know what is cases erally. Judge require any When the feels that he doesn’t argument says so, ordinarily more he and counsel ac- In this different— quiesce. case, course, I Sacher: should like— keep The Court: But do the best can as well things going can, making rulings with proper ones, blackjacked deem don’t intend to be that I don’t by any form or method doing anything into think is right. (Pp. 6343-6344.)
(Conduct involved Specification pp. 6401- XXIII — 6402; May 24, 1949.) in Specification pp. involved 6520-
{Conduct XXIV — 6522; 25, May 6565; in Specification p. involved
{Conduct XXV — *63 26, May 1949.) 6761; in Specification involved p.
{Conduct XXVI — 2, 1949.) June IMay point out, your
Mr. Sacher: that I Honor, have used the exact words of a that question you yourself put to the witness Budenz?
Mr. If Gladstein: the Court doesn’t to answer desire Mr. I question Sacher’s would like to ask the Court a question. rule, Is it to be the your Honor, only is to hear from jury the Government witnesses as to what they teachings mean, understood documents or or are the give defendants be allowed to their state mind, their beliefs and their intentions? You to. up are you I what I think see
The Court: because here right back you good rest, had have of that. as improper, those remarks assign
Mr. Gladstein: and misconduct. unwarranted 6765.) (P. right. That is all Court: The rest de- long back after came you I see The Court: provocative. to be termined on this working I was I had no rest.
Mr. Gladstein: case. you can provocative, just as You can be
The Court: have know, you You you as choose. unruly as be just Now unavailing. it is and found often tried it so (P. like. you as and do go ahead to. objected That is Gladstein: jury present. no There is away. Object Court: misconduct. judicial as assign Mr. Gladstein: prejudice assign seriously and very I object Court. of the bias when questions to answer You did refuse again. again and colleagues your put them and. it? do you didn’t out making use
What as evi- remarks assign those And Mr. Gladstein: of the Court. prejudice dence think own You hear voice You it so. that makes something you say because *64 ahead, go Now for months. doing it here been is. argument your the rest see what Let’s Crockett. 6815-6816.) (Pp.
(Conduct in Specification involved pp. XXVII — 6845- 3, 6841; June
Mr. McCabe: ... I say that the reason counsel— I am speaking for myself I now—the reason that have perhaps not made similar simply utterances is because of my greater training to restrain myself under great provo- cation.
The Court: Well, you have been impudent enough to onme numerous occasions, and were not for the fact I have determined that this trial shall not be dis- rupted by such I things should have taken against action you against each of your colleagues long this, before but shall not do it. I shall proper leave that to the authorities to take care of in due course, and there it shall rest, but need be under no misapprehension; been quite fully cognizant of your contemptuous conduct impudence.
Defendant Winter: Your I— Honor, may Mr. McCabe: I deny imputation of impudence or misconduct. I am perfectly willing to answer to any proper body for any actions of mine this courtroom or out.
The Court: Do you remember, Mr. McCabe, the date when accused me of doing things just certain so that reporters could meet the press? deadline for the Do you remember that occasion?
Mr. McCabe: IYes, quite recall it well.
The Court: You thought what you said then was entirely proper, no doubt.
Mr. McCabe: I thought it was accurate.
The Court: Well, yes, thought it was contemptuous. I just Now mention that so that you may not suppose am not aware of precise incidents that speak of. (Pp. 6848-6849.)
80 pp. 6986- Specification involved XXVIII —
(Conduct 7, 1949.) 6987; June asper- constant these I am offended
Mr. Sacher: I I make. that representations of veracity on the sions these— I resent and this court of an officer am you delib- when an instance There was press these passing were they when to me erately lied were you not and were they that said You releases. red-handed.3 caught can charge that most offensive That is the
Mr. Sacher: Honor Your court. an officer against made be part back in the happening that was knew that one of is that. That see I unable and was courtroom What lawyer. ato can do things you offensive most honor. but his got a lawyer has you did thing first That is the red-handed. caught were ever thing I most detestable is the That
Mr. Sacher: I that urge I that resent judge. from a heard record. from the expunged your take I wouldn’t why me
The Court: You.asked I enumerate might you. I told anything for word just get You can I inclined. so incidents were other word I not take fact do want; violent as anything. a member honor as my I will defend Mr. Sacher: else. will anybody or Honor against your the bar the time I am a liar. When accept denunciation capacity defend have the mental I don’t comes 3 pages 4228- at by reported referred to incident The — Specification XV. for his the basis record —was 4229 of the unanimously reversed specification was Sacher on conviction suf think it was did not that court Appeals because the Court attempting to mislead court.” was ficiently “that clear Sacher 416, 424-425. F. 2d from resign than will my any lying clients on other basis lying. an idiot resorts to don’t have the bar. think to do it. did it.
The Court: You go. these little amenities can see from better let We *66 could, you if belligerent you thought you manner physically up physically come to the bench might frighten I it doesn’t your manner, attack me. know degree. get Let’s back to what we slightest me (P. 7029.) doing. were opinion you, I definite very
The Court: have too, Mr. Crockett. about Mr. speaking But I am not
Mr. Crockett: Crockett. I I see express But shall not it because
The Court: Mr. it. I done it to no to do should have occasion had he not asked me. Sacher, Crockett, Mr.
Mr. I am not about speaking Crockett: very do have fully you probably and I am aware that as to Mr. Crockett. opinion definite I never been so insulted Why, The Court: have being any I heard of other baited, nor ever by you I baited, during the trial as have so insulted and from here this case lawyers representing defendants about make no bones January on, the 17th of and will tolerated and have going on, it. That is what has been no but make indicated, of the reasons I have because (Pp. about it. misunderstanding as to what think 7030-7031.)
( n Conduct pp. 7086- Specification involved XXIX — 7087; 9, 1949.) June smiling. I Mr. Sacher see
The Court: awfully good notice takes Your Honor Mr. Sacher: Mr. Gladstein but when expressions, facial my about poppinjay like a jumping up about Mr. Gordon spoke nothing. you saw you Now you pleased. did seem Well,
seem different. never but are under surveillance Sacher: We does. prosecution that the anything
see may It be because you say. That is what it nec- to make nothing prosecution there is done for comment. essary going that I wasn’t ago
I told some little time any- lawyers get away with permit you or the other (P. not. thing presiding while was here and shall *67 talking my I wish would about you stop The Court: pulling my nodding my head, scratching my head all Why good ears. don’t leave that out? What that do. does Well, your
Mr. Isserman: whether Honor— Mr. Pardon me one minute. think it is Crockett: things there are some that are very important because a matter of made record the Court— You any The Court: haven’t missed them. Mr. far transcript Crockett: —so as the is concerned. Very frequently testimony your notice the course of Honor makes toward or frequent glances jury over expression gives impression, some facial that to me at least, the Court— Well, funny—
The Court: it is Pardon me. I think that Crockett: whenever obvious, it ago, is so as was while some mention it should be made so that it will be carried record. If is something there about my winking
at the jury or something I am kind, surprised that you did not mention it at the time.
Mr. Crockett: No, I have not noticed a winking yet. If I had I would have mentioned it.
The Court: Well, there isn’t much that you have missed, but you may just as well go ahead and get it all down and of your out system. deny that have ever done anything of the kind. I wouldn’t stoop to such a thing, and I do not see how lawyers have the effron- tery to keep saying so. (Pp. 7269-7270.)
Mr. Gladstein: Now Honor has said if this exhibit were received it would be unprecedented. Now first of all I think that that wouldn’t be an obstacle be- cause a number of unprecedented things have already occurred commencing with the returning of the indict- ment.
The Court: Ha ha, you know I expected you were going to do that.
Mr. Gladstein: I can’t overlook the opportunity nor necessity reply to your Honor. The Court: All right.
Mr. Gladstein: is an unprecedented This case. It presents unprecedented issues. It has been handled an unprecedented way. *68 I’ll say (P. it has. 7670.)
Mr. Gladstein: IMay say one word?
The Court: If you ever did that, Mr. Gladstein, think I would drop dead. it in I mean word, one say When
Mr. Gladstein: sense. lawyer’s 7676.) (P. right. All
The Court: tyrant an old being me of Well, you accuse The Court: mis- judicial ofme sun, accuse under everything and temper, good I take kinds, and various conduct your prove to having chance not speak about you and your case prove to ample chance have had You case. have you see that can record reads this who anybody you how cut saying need is no there had. So going I am necessary time. take the I won’t and how out one to be going I am but necessary time take the (P. necessary. what is decide 8045; p. Specification involved (Conduct XXX — SO, 1949.) June laugh things these Sacher, cannot
The Court: off. off. anything laughing I am
Mr. Sacher: something, at laughed must You The Court: to me. very offensive it is case, unrelated obviously sois It
Mr. Sacher: being asked. it is why imagine I cannot there imagine imagine, I can Well, The Court: think, perhaps, too, and who can others are laughing— reason at all. the reason that is not No,
Mr. Sacher: it off. —laughing laughing. I am reason is not That Mr. Sacher: stop. You should *69 Mr. Sacher: And I I say should haven’t been laughing.
The Court: You should thought have first. (P. 9167.)
Mr. It Sacher: used be done to me on cross-exam- ination. you?
The Court: What used be done to Mr. Sacher: This business of out that a pointing ques- tion was not in precise preceding words of the ques- tion. that kind. I nothing recall take it your attempt-
that is another one of offensive comments that I am ing appear partial to make it to the Govern- (P. 9185.) ment—
Mr. it It of a contradictory. speaks Sacher: But Now which is it? Is speaks rule and of “sometimes.” rule? general it sometimes or is it I will and re- McGohey: question Mr. withdraw the it, Honor, argument so that we can save the frame get and on. I am to state on the record that wish very through mentally incapable going and
physically shall wrangling argument more of this much it if it something to do about is continued more than admonition. It is obey my counsel refuse (P. stand. any being human can heard may If please, the Court Isserman: for a moment? my state mentioning my suppose Court: *70 argu- to additional spur a merely served has
fatigue 9224.) (P. morning. this ment biased of the In ... view Dennis: Defendant restricting the— rulings, prejudicial of mine? mean bias You The Court: them, I understood Biased, as Dennis: Defendant Honor. your Do me? bias mean you I but say, that?
you say Court. part theOn Dennis: Defendant thought I thought. I is what That (P. you claimed. it clear what well to have might be 9344.) 9876- pp. Specification in
(Conduct involved XXXI — 1, Aug. 1949.) 9877, 9408-9405; pp. 9588- Specification (Conduct involved XXXII — 8, Aug. 9537, 9541-9543; you appeal I want to ... don’t
Mr. Sacher: Mr. Glad- comfort or Isserman’s serving Mr. the basis Mr. Crockett’s— stein’s or Mr. player, McCabe. golf Or
The Court: I think golf player. not a Well, he is Mr. Sacher: injustice. him an you do for about golf playing If hadn’t been
The he Court: my guess. day, miss him the other a week saw when golf if are not you I am No. sure Sacher: if you injustice; an doing are him you then enthusiast envious. just are, then The Court: Well, to tell the honest truth, just putting finger right on it. (P. 9688.) The Court: You see, have made certain rulings the last days few which felt the circumstances compelled me to make and which have led to the rulings that I am now making. am determined to survive this case.
Mr. Sacher: Well, no one has any purpose that you shouldn’t, Honor. And Court: it is very true that there has been
an evolution my rulings, and necessarily so, and al- though all the defense, including some the defendants *71 and all of lawyers calling are me all kinds of names, I was trying, according my lights, to be extremely liberal, and am quite sure that the record will that show I was. I then found that a lot of these matters, such as the you one speak now, simply had to be cut out. They have no bearing case, on the and Iso have had to change the character my rulings on the basis pre- venting cumulative evidence and on. the basis generally power having that must exist to terminate a case within bounds, such as to be consistent with the main- tenance of the health of jurors and Judge and everybody concerned. (P. 9689.) involved in Specification 9731; p. 0Conduct XXXIII — Aug. 5, 1949.) (Conduct involved in Specification pp. 9886- XXXIV — 9887; 10, Aug. 1949.)
Mr. Crockett: I object, your Honor, unless Mr. Gor- don is specifying some particular by classic particu- some lar author. min- it in around get will he I think Court:
The Overruled. ute. these having were not we thought Crockett: though. questions,
general of what import see, get you Well, Court: The perhaps appear, to make trying are just You say. this way one I ruled that spectators, benefit I am so that questions general your as to morning on opposite just the I ruled biased prejudiced know Now, you Mr. Gordon. put questions similar put questions These that. nothing in is there proper, perfectly they are here and cross-examination be omitted. insinuations ironical little those suggest (P. question. Honor’s your object
Mr. Gladstein: Overruled. in which manner to the Also Mr. Gladstein: the question. asked Honor manner. about nothing There Court:
The accompanied gesture And the Mr. Gladstein: it. ame criticized hand and my I raised Court: *72 criticisms. for such no basis I see of times
number at this— get going I am no basis sees Honor Naturally your
Mr. Gladstein: and defends represents who attorney but an for criticism view. a different have may clients statements object I to is false What Court: The done and not by me to be done are said things col- to and object is what That me. by things statements with this record filled have leagues Every time did. and never to have done supposed I am straight. going kept start that I am to see the record is (Pp. 10718-10719.) p. 10748; involved in Specification
0Conduct XXXV — Aug. 26, 1949.)
(Conduct pp. involved in Specification XXXVI — 10865-10856; 29, Aug. 1949.)
(Conduct p. involved in Specification XXXVII — 11213; 9, Sept.
(Conduct involved Specification pp. XXXVIII — II4I8-II42I; Sept. 14,1949.)
(Conduct involved in Specification p. XXXIX — 11432; Sept. 14,1949.)
(Conduct in Specification involved pp. XL— 12064- 12065; 4, 1949,)4 Oct. Douglas,
Mr. Justice dissenting. I agree with Mr. Justice Frankfurter that one who reads this record will have difficulty determining whether members conspired of the bar to drive a from the bench or whether the judge authority used the to whipsaw bench the lawyers, tempt to taunt and them, and to create for himself the role of the persecuted. reluctantly concluded that blameless, neither is there is fault on side, each that we have here the spectacle of the bench and using the bar the courtroom for an unseemly garrulous demonstration of discussion ill and of will and hot tempers. agree therefore with Mr. Justice Black
Justice Frankfurter that this is the classic case where the trial for contempt should be held before another judge. agree also with Mr. Justice peti- Black that tioners were entitled the Constitution to a by jury. trial judgments contempt specifications on all were filed on 14, October 1949.