Felix Frankfurter

“ To dispense with indictment by grand jury and trial by a jury of twelve does not mean the right to disregard reason and fairness. Reason and fairness demand, even in punishing contempt, procedural safeguards within which the needs for the effective administration of justice can be amply satisfied while at the same time the reach of so drastic a power is kept within limits that will minimize abuse. ”

“ To recognize the generality of a power is the beginning not the end of the inquiry whether in the specific circumstances which invoked the power due regard was had for the implied restrictions. Among the restrictions to be implied, as a matter of course, are two basic principles 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 safeguards for assuring fairness and affording the feeling that fairness has been done. ”

“ I do have great respect for the office which I hold. I represent here not the rich, not the poor, but all the people and the majesty of the Government of the United States. And I am cognizant of that and I am trying to do the best I can, to be just and to be fair according to my lights. I may make mistakes, I suppose I often do, but I can only do my best.
You may proceed with the trial.
Mr. Sacher: If the Court please, I think we too, both the defendants and defendants' counsel, have received a series of letters with threats of violence against ourselves, our wives and our children. ”

“ Criminal justice is concerned with the pathology of the body politic. In administering the criminal law, judges wield the most awesome surgical instruments of society. A criminal trial, it has been well said, should have the atmosphere of the operating room. The presiding judge determines the atmosphere. He is not an umpire who enforces the rules of a game, or merely a moderator between contestants. If he is adequate to his functions, the moral authority which he radiates will impose the indispensable standards of dignity and austerity upon all those who participate in a criminal trial. ”

“ Chief Justice Taft then took occasion, on behalf of the whole Court, to lay down the guiding considerations which should have been followed in this case:
'The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable. But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. ”

“ The Court: Mr. Sacher, you are becoming positively insolent.
Mr. Sacher: Well, I am not. I am stating- The Court: Now I won't have it.
Mr. Sacher: I am stating what your Honor seems-
The Court: You have charged me with about everything that a lawyer can charge a court-
Mr. Sacher: I am making no charge-
The Court: You are charging me by this innuendo of some sort of connivance with the United States Attorney, and I just will not have any more of that. (P. 1661.)
The Court: Mr. Gladstein, I hope I am misunderstanding the purpose of that comment. It does not seem to me that you needed to do it. ”

“ His self-concern pervades the record; it could not humanly have been excluded from his judgment of contempt. Judges are human, and it is not suggested that any other judge could have been impervious to the abuse had he been subjected to it. But precisely because a judge is human, and in common frailty or manliness would interpret such conduct of lawyers as an attack on himself personally, he should not subsequently sit in judgment on his assailants, barring only instances where such extraordinary procedure is compellingly necessary in order that the trial may proceed and not be aborted. ”

“ It is a disservice to the law to sanction the imposition of punishment by a judge personally involved and therefore not unreasonably to be deemed to be seeking retribution, however unconsciously, at a time when a hearing before a judge undisturbed by any personal relation is equally convenient. It does not enhance a belief that punishment is a vindication of impersonal law; it does not fortify the deterrent function of punishment.
Had the judge here found the petitioners guilty of contempt during the actual course of the trial a different problem would be presented. ”

“ I did not infer that at all, your Honor.
The Court: What did you mean?
Mr. McCabe: What I said, that the sawdust was getting in somebody's eyes?
The Court: Yes. Whose eyes were you talking about?
Mr. McCabe: I say the eyes of anybody who is interested in defending a system of selection of jurors which is as we claim it to be. I will say this, your Honor-
The Court: But you did not mean my eyes, I take it, did you? You could either say yes or no. Now which is it?
Mr. McCabe: Well, when sawdust starts flying around I guess it gets in everybody's eyes.
The Court: So you didn't mean me? ”

“ This safeguard concens not merely the litigants in a particular case; it is everyone's concern. The impartial administration of justice presupposes the dignified and effective conduct of judicial proceedings. That in turn is dependent on a proper atmosphere in the courtroom. Thus, the power of courts to punish for contempt is a means of assuring the enforcement of justice according to law. The protection of the most generously conceived civil liberties presupposes a court overawed neither by interests without nor by disruptive tactics within the courtroom. ”

“ Our whole conception of justice according to law, especially criminal justice, implies an educated, responsible, and independent Bar. Counsel are not freed from responsibility for counduct appropriate to their functions no matter what the encouragements and provocations. Petitiones must be held to strict accountability for the contempts they committed. But until the inherent authority that should radiate from the Bench is found ineffective in securing seemly conduct by counsel, there is no need for drastic peremptory procedure in bringing contemnors to book even during a trial. ”

“ Resort by a judge to criminal sanctions without the usual safeguards in imposing punishment is to be supported only if the moral authority of a trial judge cannot command order and respect, only if a firm reprimand calculated to secure obedience would not halt an incipient course of misconduct. ”

“ Now I think perhaps it is apparent to everyone that the character of the accusations that have been made against me here from day to day and the extravagant charges that have not only been made once or twice but repeatedly and emotionally and loudly may well cause some misguided and poor people or others to get a wrong impression of the administration of justice and of what I am doing. I have no great opinion of myself as an individual. ”

“ If we are to understand the circumstances in which the sentences under review were imposed, a close study of the record in the Dennis case cannot be avoided. The certificate of contempt incorporated the whole record of that case and made its findings on the basis of it. We cannot do less in passing on the propriety of the summary convictions. We cannot do less if we are to appraise fairly the power assumed by the trial court of punishing without further ado at the end of the trial conduct that took place during its long travail. ”

“ Mr. Gladstein: * * * Now, although everybody, one would think, who did not prejudge the matter here-
The Court: Well I deny the motion to disqualify me.
Mr. Gladstein: Well, you were anticipating. I wasn't going to make one.
The Court: I am very quick to catch on, and I thought when you said 'anybody who does not prejudge,' it was just another way of telling me again what you have told me so many times, and your colleagues have told me so many times: that I have prejudged it all; that I am biased and prejudiced and unfit to sit here. ”

“ The general direction thus given to lower courts is not likely to be respected by them if this Court is too genial in enforcing its observance.
Enforcement is not had by repetition of generalities and sanction of their disregard in practice. We must start, no doubt, with a predisposition in favor of the propriety of a trial judge's action. His is the initial responsibility, and we must assume that the discretion with which he is entrusted will normally be exercised by judges of firmess, self-discipline, and good sense. ”

“ Well, there isn't going to be any country club atmosphere in my court.
Mr. Gladstein: When a man hears something that is ludicrous and absurd to the extreme I suppose he is permitted the human reaction of a smile of contempt.
The Court: That to me is in the same line as some of the comments we have had in the past. It may seem very funny to the defendants. They seem to enjoy it, but I don't think it is, and their laughing is not going to have any effect. (P. 4805.)
Mr. Gladstein: That is what we get. Your Honor asked why people are smiling, but there is an irony to it. ”

“ All we can say upon the whole matter is that, where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. ”

“ Public respect for the federal judiciary is best enhanced by exacting high standards of judicial competence in the conduct of proceedings and by discouraging an assertion of power which is not restricted by the usual demands of Due Process and which too often manifests a failure of moral mastery. ”

“ Mr. Sacher: Well, no one has any purpose that you shouldn't, your Honor.
The Court: And it is very true that there has been an evolution in my rulings, and necessarily so, and although all the defense, including some of the defendants and all of the lawyers are calling me all kinds of names, I was trying, according to my lights, to be extremely liberal, and I am quite sure that the record will show that I was. ”

“ Later, on February 1, 1950, the other defense attorney MacInnis-thus addressed the court after one of its rulings: 'I think you should cite yourself for misconduct. * * * I have never heard anything like that. You ought to be ashamed of yourself.' Soon after this remark the court recessed until the next day. After overnight consideration, the judge informed the lawyer that his remark constituted contempt and that a certificate of contempt in accordance with Rule 42 would be filed. ”

“ These specifications charged misconduct of a nature especially reprehensible when committed by lawyers who, as officers of the court, are part of our judicial system. As such they are under a duty to further, not obstruct, the rational and fair administration of justice.
The certificate on which petitioners were found guilty of contempt charged thirty-nine occurrences during the trial as thirty-nine items of misconduct. However, these specified items were not regarded by the judge as discreet instances. He deemed them manifestations of a conspiracy by the contemnors against him. ”

“ Presumably they are responsible beings with cool heads. In any event, this Court sits to correct a rare occurrence of irresponsible action. Finally, the Government urges that a hearing before a different judge would give petitioners another opportunity for harassing tactics, and that to subject the trial judge to cross-examination and refutation by witnesses drawn from courtroom spectators would embroil the federal judiciary in damaging controversy. Once more the Government depreciates the status of federal judges. ”

“ As to the woman who desired to sit on the other side where the empty seats are, I noticed the matter and I 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 I told her that I thought she was right, and that while those members of the press were not occupying the empty seats perhaps it was only reasonable to have the last row at least made available to those who were waiting to get in.
Now, that is all there is to it. There is no mystery. There is no danger. ”

“ It may be assumed, when I am looking at papers, and I rule on them, that I read them, without having counsel make remarks of that character. (Pp. 5132-5133.) Mr. Gordon: Mr. Sacher thinks that this is very funny.
Mr. Sacher: I do.
The Court: He is a great fellow. There is no question he can give more indication of what he thinks about by tittering and laughing and giggling.
Mr. Sacher: I move that that be stricken on the ground it is utterly unwarranted and not founded on the record and solely as a diversion. ”

“ It is suggested, however, that a judge should be allowed to punish contempt peremptorily, as did the judge here, long after the contempt occurs. Otherwise he might be impelled, so it is surprisingly argued, to act on the inflamed impulse of the moment for fear of losing the opportunity to punish the offender himself. The Hallinan and MacInnis cases suggest the answer: power to cite for contempt summarily is not lost by taking a reasonable, brief time for judicious consideration whether such drastic action is necessary in a pending trial. Moreover, the guides to right conduct which Mr. ”

“ Aug. 1, 1949.)
(Conduct involved in Specification XXXII-pp. 9533-9537, 9541 9543; Aug. 3, 1949.)
Mr. Sacher: * * * I don't want to appeal to you on the basis of serving Mr. Isserman's comfort or Mr. Gladstein's or Mr. Crockett's-
The Court: Or that golf player, Mr. McCabe.
Mr. Sacher: Well, he is not a golf player. I think you do him an injustice.
The Court: If he hadn't been playing golf for about a week when I saw him the other day, I miss my guess.
Mr. Sacher: No. I am sure if you are not a golf enthusiast then you are doing him an injustice; if you are, then you are just envious. ”