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FRANKFURTER, J., dissenting.

343 U.S.

.

found Hallinan in contempt and sentenced him to six months' imprisonment. On the face of the record it would require even more than the boldness of hindsight to say that the trial judge could not have reasonably believed that immediate vindication of the disobedience of the court's order was necessary to secure respect for his authority during the remainder of the trial.

Later, on February 1, 1950, the other defense attorneyMacInnis—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. Here again, the judge took prompt action in order, as he concluded, to assure the orderly continuance of a trial which still had many weeks to go.

The Hallinan and MacInnis cases disprove the Government's claim that prompt citation for contempt, if the circumstances warranted it, would have caused delay and disruption in the New York trial. In the California case Hallinan remained as defense counsel by virtue of a stay in the execution of his sentence; and MacInnis, by a postponement of his sentence until after the verdict in the principal case. MacInnis evidently abstained from further misconduct in the principal trial because of the certainty of punishment, though he did not know its magnitude. Either device was available to the trial judge in New York had he felt that only by a prompt judgment of contempt could he keep control of the proceedings. In fact he did keep order by measures short of those used in the California case. At the end of the trial the only question was whether he or another judge, not personally involved, should pass on issues of contempt that had

FRANKFURTER, J., dissenting.

arisen during a trial that had ended, and impose punishment if guilt was found.

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. Chief Justice Taft laid down in the Cooke case, and on which I rely, rest on the assumption that federal judges are not undisciplined creatures whose feelings 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, 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 court-room spectators would embroil the federal judiciary in damaging controversy. Once more the Government depreciates the status of federal judges. It derogates from the high conception which one should have of them not to attribute to the judge who would preside in the contempt hearing those capabilities by which federal judges, especially in non-jury cases, conduct proceedings in an effective, expeditious and dignified manner, with appropriate control over the scope of cross-examination and the offer of witnesses.

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

Appendix to Opinion of FRANKFURTER, J., dissenting. 343 V. S.

of power which is not restricted by the usual demands of Due Process and which too often manifests a failure of moral mastery.

APPENDIX TO OPINION OF VR. JUSTICE FRANKFURTER.:

EXCERPTS FROM THE RECORD OF THE PRINCIPAL CASE,

DENNIS 2. UNITED STATES. The Court: Well, if you think I am going to conduct an inquiry as to the reasons why everybody is in each one of the seats here you are making a big mistake, because I am not going to do that. There are lots of people here who came for reasons that are sufficient for themselves.

Mr. Gladstein: I understand, but your Honor will certainly permit me to call your Honor's attention at least to the facts that I want to complain about, even though I am told that your Honor is not going to do anything about it. And you will permit me, will you not, your Honor

The Court: You know, Mr. Gladstein, I don't like that crack. I don't know who told you that I am not going to do anything about this or that. (Pp. 72-73; Jan. 17, 1949.)

Mr. Gladstein: I think Mr. Sacher was referring to the question of the hours that you want to sit today, the

1 Since the whole certificate of contempt was published as an appendix to the opinion in the Court of Appeals and is readily available, 182 F. 2d 416, 430-453, there is here not reproduced any part of the record which has already been quoted adequately in the specifications of the certificate. Each specification should be examined in

onnection with this Appendix, at the appropriate point indicated Lerein. Each specified episode involving contemptuous conduct should be placed in the trial setting as shown by the further excerpts reproduced here from the whole record.

The page references are to the printed record before this Court in Dennis v. lnited States. 341 l'. S. 494.

1

Appendix to Opinion of FRANKFURTER, J., dissenting.

time. That is why he asked. I was getting a little hungry myself. And you look a little peaked I think.

The Court: If I felt any stronger than I do right now I would be sick. So don't worry about my looking peaked, I feel all right. (P. 88.)

Mr. Gladstein: ... Standing behind me here are two men who are attaches of this court, they are bailiffs.

The Court: But they are always there, at every criminal trial.

Mr. Gladstein: Your Honor, you haven't heard me yet. I have no objection, precisely.

The Court: If I seem impatient to you I am sure it is a very misleading impression.

Mr. Gladstein: I will accept that, your Honor, with what I think you intended to convey. (Pp. 146–147.)

The Court: ... I think you have squeezed all the juice out of that particular orange.

Now, why don't you get on to the merits of your claim that the judges here should not try this issue.

Mr. Gladstein: If you would permit me, 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 I come, from which the citrus fruits are a product

The Court: No Californian ever misses the chance. (Pp. 207-208.)

The Court: If you mean that as applicable to me, I say I don't know anything about it. I don't. I haven't the remotest idea how these juries are got together. I have only been on the bench here as you know a short Appendix to Opinion of FRANKFURTER, J., dissenting. 343 U.S.

Mr. Gladstein: How long has it been, your Honor?

The Court: Well, July 1st, 1947, was the great day, as I remember it.

Mr. Gladstein: Well, that is over a year and a half. (P. 212.)

Mr. Gladstein: But what happened about ten years ago was that it was decided to throw that system into the ashcan, so to speak, and to substitute for it a system which is the opposite of democratic, fair, truly representative; and this is what took place, as our affidavits show: instead—well, first of all

The Court: Now all this time I am thinking, where is the bias? Where is the prejudice? What kind of a judge must you have specially? I am think[ing] about that, and doubtless you have got it in mind.

Mr. Gladstein: I certainly have, your Honor.

The Court: Don't creep up on it too suddenly. (Pp. 238-239.)

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Mr. Gladstein: ... You as a practicing attorney stood before the Supreme Court of the United States and spoke about the necessity of having a democratic jury system in the State of New York.

The Court: And as I understand it the fact that I then fought for a democratic jury system shows now that my mind is so biased that I am not fit to sit here and hear your case? That seems a little inconsistent to me.

Mr. Gladstein: If your Honor please, please don't distort the meaning of what I say, because what I am saying is: the fact that 18 months ago or thereabouts your Honor stood before the Supreme Court demanding that it condemn an illegal, vicious kind of jury system in the State courts, plus the fact that for 18 months your

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