“ While the interviews were undertaken under unusual circumstances, it is difficult to say whether the circumstances furnish more or less justification than is present in the average juror interview-which we do not read the Supreme Court's opinion as holding censurable, except as to the future. [15] The Legal Ethics Committee had charged petitioner with concealment of facts in her affidavit as to the juror interview filed with Judge Wiig in support of her motion for a new trial for the Smith Act defendants, but we do not find anything in the Supreme Court's opinion agreeing with these charges. ”

“ Petitioner did not say Judge Wiig was corrupt or venal or stupid or incompetent. The public attribution of honest error to the judiciary is no cause for professional discipline in this country. See In re Ades, D.C., 6 F.Supp. 467, 481. It may be said that some of the audience would infer improper collusion with the prosecution from a charge of error prejudicing the defense. Some lay persons may not be able to imagine legal error without venality or collusion, but it will not do to set our standards by their reactions. ”

“ In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.'↑ 'The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice. ”

“ While there is clearly some delicacy involved in approaching a juror who has become mentally unsettled, evidence that a juror was incompetent at the time of the rendition of the verdict might be admissible to impeach a verdict where evidence of the jury's mental and reasoning processes is not. ”

“ Speculation cannot take over where the proofs fail. We conclude that there is no support for any further factual inference than that petitioner was voicing strong criticism of Smith Act cases and the Government's manner of proving them, and that her references to the happenings at the Honolulu trial were illustrative of this, and not a reflection in any wise upon Judge Wiig personally or his conduct of the trial. ”

“ But it hardly needs elaboration to make it clear that the question of the total insufficiency of the evidence to sustain a serious charge of professional misconduct, against a backdrop of the claimed constitutional rights of an attorney to speak as freely as another citizen, is not one which can be subsumed under the headings of local practice, customs or law. ”

“ All rules of evidence have to be scrapped or the Government can't make a case.' She related how in another case (in the territorial courts) she was not allowed to put in evidence of a hearsay nature to exonerate a criminal defendant she was representing, [2] but in the present case 'a federal judge sitting on a federal bench permits Crouch (a witness) to testify about 27 years ago, what was said then * * * here they permit a witness to tell what was said when a defendant was five years old.' She then declared, 'There's no fair trial in the case. ”

“ Likened this to pukas in the Smith act.
'Said men in power are trying to put men in jail because of their thoughts. and books written before he was born.
'One of the reasons Jack Hall is on trial is because it is said he once got a book, the Communist Manifesto, written in 1898, before Jack Hall was a gleam in his father's eye.
'She quoted from manifesto: a spectre is haunting Europe; the spectre is communism. she explained spectre means ghost. said spectre still seems to be haunting people today.
'She turned next to conspiracy. noted there was a conspiracy trial in 1937 of filipino brothers. ”

“ Others disagree. But all are free to express their views of these matters, and no one would say that this sort of criticism constituted an improper attack on the judges who enforced such rules and who presided at the trials. ”

“ The prosecution sayscro uch did this and that and we (prosecution) say the defendants are communist party members so they must have done the same.
'but government propaganda has been going on for 10 years before the jurors went into the jury box.
'it's enough to say a person is a communist to cook his goose. the government says there was an agreement to violate the smith act which was passed in 1940. then the defendants agreed to violate it before it was passed. crouch said he was at a communist meeting in 1941 and saw five or six people there. ”

“ We hold that it does not.'↑ Lower federal court judges have in the past questioned conspiracy indictment practice. See the statement of the 1925 Conference of Senior Circuit Judges, as quoted in Annual Report of the Attorney General, 1925, pp. 5-6; L. Hand, J., in United States v. Falcone, 2 Cir., 109 F.2d 579, 581.↑ For example, the petitioner argued in the Court of Appeals that a law professor at Yale had made criticisms in more pungent terms than hers. ”