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

Mr. McCabe (Continuing): If I said to your Honor that perhaps there were other serious things wrong with this courtroom, just the physical aspects of the courtroom, I think that I am not far off in assuming that your Honor would cause the fullest investigation to be made to see that the physical safety, not of yourself

The Court: That is where you are making a big, 100 per cent mistake. It would roll off my back like water off a duck, and I would not even look at the legs of the chair. (Pp. 573-574.)

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Mr. McCabe: That is not regulating the order of proof, your Honor, when just as it looks, as everybody realizes, that the initial proof absolutely supports our assertion then suddenly we are cut off and shunted on to some other way; that our orderly procedure and expeditious procedure in proving our case is suddenly disrupted by your Honor's ruling. I say it certainly indicates some fear on your Honor's part.

The Court: Well, I have no fear. If you have any impression that I am afraid you may put that out of your mind entirely, because I have not felt any fear, and I can only remember once in my life that I was afraid, and I am not accustomed to be afraid, and I am not afraid now. So you can just drop that subject. If you want to know what that one time was that I was afraid, I will tell you sometime.

Mr. McCabe: Your Honor picks up the word “fear." I would like to get back to the word "bias," then. (P.

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The Court: You have a curious way of expressing yourself, to say the least.



Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Sacher: Perhaps that may be so, your Honor, but unfortunately I can express myself in no other way. And I would like, if your Honor would be kind enough to indulge me to refrain from personalities so that I may develop what I regard as a most important argument on this question,

The Court: You ask me to refrain from personalities? Mr. Sacher: I think so. You have just accused me

The Court: For what purpose? I indulged in no personalities.

Mr. Sacher: You said I have a curious way of expressing myself.

The Court: Yes. You said the United States Attorney had confessed his guilt. I considered that

Mr. Sacher: I did not use those words. I said he made a confession of guilt and I stand by that statement.

The Court: Well, that is no personality. That is a comment on a sort of argument that I think is out of place and not helpful.

Mr. Sacher: All right. (P. 607.)

The Court: ... But you have made so many challenges of bias and prejudice and said that every time I 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 is utterly unprecedented.

Mr. McCabe: Your Honor, when the demonstration of the bias is repeated the objections to it must [by] necessity be repeated.

The Court: Well, you may, as I said before, you may challenge my bias and prejudice just as often as you think

you should

Mr. McCabe: We shall, your Honor. 994084 0-52-8

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

The Court: I take no umbrage at that. But I should think that


had covered that ground pretty well. (Pp. 612-613.)

The Court: Well, so many things have happened that seem, as I read back over that record, hardly consistent with anything other than a concerted and deliberate and wilful effort to delay. But I have told you that the thought merely occurred to me and I have put it out of my mind for the present. I wouldn't want to have something come along later and have anyone fail to understand that there is this interpretation of what has been going on. I do not say it is the right interpretation; it may well not be. And all I do say is that the thought for the first time came into my mind and I put it out.

So we adjourn now until tomorrow morning at 10.30.

Mr. Sacher: I want to state on the record, however, that I deny what your Honor said.

The Court: You don't need to shout, Mr. Sacher. Mr. Sacher: No. I resent

The Court: It is possible to address the Court occasionally without shouting.

Mr. Sacher: Yes. Your Honor in a quiet manner is picking out a point which will result in certain headlines tomorrow morning. For the record I want to make it clear that I have done nothing and will never do anything to delay or hinder the progress of this case. And whatever I or any other counsel in this case have done or has done has been directed solely to the achievement of the end of proving that this jury system is bad.

And I think, your Honor, that there is no justification for closing every day's session with the observation as to what thought was entering your Honor's mind concerning our state of mind. (P. 623.)



Appendix to Opinion of FRANKFURTER, J., dissenting.

The Court: Now a little incident occurred this morning about which I will have no mystery. Due to the numerous communications of one kind or another that have been arriving up at my home my wife came down here this morning. I suppose I should have told her not 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 felt she was entitled to go there and made a little, slight disturbance with the bailiffs. And so my wife sent this note to the police which reads, "Tell Detective Mitchell to guard the Judge at lunch hour.” And as the messenger proceeded with the note one of the alert reporters was able to get a hold of the note, and so the rumors started around the building, and goodness knows where else they have gone.

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. I haven't felt the slightest concern about the communications I have been receiving. And there it is.

I have no notion that any of those communications have been inspired by the defendants or by any of their counsel. I do not feel that I am in any personal danger at all. But if I am wrong, I shall face the risk calmly and I shall do my duty.

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

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. 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. Indeed, when I returned to my home at one o'clock this morning my wife greeted me, not with a note to a detective, but with several letters.

I might in passing say that your Honor may have received crank notes. I am sure that they were not inspired by anything we said or did. And in that connection I may say that so far as the defendants are concerned they have received much more than crank notes. You will recall that in one of the arguments I pointed out

The Court: I am glad you can tell the difference-
Mr. Sacher: Will your Honor-

The Court: I am glad you can tell the difference between a crank note and others. But I am not disposed to have argument about everything.

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