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Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Sacher: I know, your Honor.

The Court: May we not even pass this incident without extended discussion? (Pp. 664–665.)

Mr. Sacher: Mr. Gladstein, now we can't hear you.

The Court: Now (that (sic) is a strange accusation, Mr. Gladstein, because your voice is very penetrating and pleasant.

Mr. Sacher: Why, your Honor, I must say, however, that I did not hear Mr. Gladstein. He was speaking so softly.

The Court: I don't doubt it. That is all right.

Mr. Gladstein: Perhaps the newspapers should take note. They 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 be very little to entertain us if we took too seriously what some of them say.

The Court: You know, I have often felt, as I have often expressed myself here, that it is better not to be stuffy. I try not to be.

Mr. Gladstein: All right. (P. 667.)

The Court: Now, Mr. Gladstein, I know all about leading questions, and when the Court in his discretion will allow them, and when he won't. Now you go ahead and lead him as little as necessary.

Mr. Gladstein: I don't have to lead him at all, and I won't, your Honor.

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

The Court: That is all right. It is just not to get into an unnecessary argument about it. Because I know plenty about leading questions. I have probably tried a few of them myself in my day. (P. 714.)

Mr. Sacher: ... we shall ask for and insist upon the time necessary to explore those records in order

The Court: I wish you would not use that expression "insist upon.”

Mr. Sacher: That means urging, that is all.
The Court: You know, you use it all the time.

Mr. Sacher: I don't do it all the time. I think the record should indicate that "all the time" to your Honor in this instance means once.

The Court: Perhaps when I used the expression "all the time" I used it in a rhetorical sense. But, anyway, I would like to have you understand that you will insist upon nothing

Mr. Sacher: Well, we will urge that.
The Court: I will rule what is to be done. (P. 884.)

Mr. Sacher: I have just one observation to make, your Honor, concerning delay. While speed is a very commendable objective, I think justice is a greater one, and . that if it be

The Court: Well, it is nice to have you remind me of that.

Mr. Sacher: What is that, your Honor?

The Court: I say, it is nice to have you remind me of that. (P. 885.)


Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Gladstein: ... Now it seems to me very plain that Mr. McGohey is here toying with possibilities. This witness or other witnesses

The Court: Well, he has got some competition in that.

Mr. Gladstein: Well, we are not going to let him toy. We are very serious about this.

The Court: Oh, well, I know.
Mr. Gladstein: We are quite serious.

The Court: You take over the courtroom any time, but I am here running the court, so don't say, as you and Mr. Sacher are apt to do: you insist on this and we are going to do this. You are going to do what I tell you to.

Mr. Gladstein: Well, I am going to remain serious, regardless of what your Honor tells me.

The Court: That is right. (Pp. 931-932.)

(Conduct involved in Specification 111-pp. 933–934; Feb. 2, 1949.)

(Conduct involved in Specification IV-pp. 10341038; Feb. 3, 1949.)

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

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

biased and prejudiced and unfit to sit here. Now, I am familiar with that, and if you think you are going to get me excited saying that over again, you are making a big mistake.

Mr. Gladstein: I wasn't going to say it over again, and if I were it would not be for the purpose of getting you excited. It is true I have a definite mind on the question of whether legally you are disqualified, whether you are biased, but I wasn't going to express it.

The Court: They went all the way up to the United States Supreme Court with it, and I suppose if there was any further you could go, you would do that.

Mr. Gladstein: They didn't pass on your Honor's bias. They did not say you were unbiased

The Court: They denied the application for certiorari.

Mr. Gladstein: Yes, they refused to hear the question of whether or not you were biased, that is true, but that does not mean, your Honor, that they passed favorably on the contention of the Court. It does not mean, of course, that they held that you were biased, but neither does it mean that they held you were unbiased.

The Court: Well, you don't really need to keep rubbing it in and telling me every day that I am prejudiced, biased, corrupt, and all that sort of thing, because after a man has been called names a certain number of times they have no effect on him any more. (Pp. 1034–1035.)

(Conduct involved in Specification V-pp. 1049–1059; Feb. 3, 1949.)

(Conduct involved in Specification VI-pp. 10851092; Feb. 4, 1949.)

The Court: Well, you see, you and your colleagues have apparently adopted a new technique in criminal

Appendix to Opinion of FRANKFURTER, J., dissenting.

cases by which instead of the defendants who are indicted being tried, the Court and all the members of the court are the ones who must suffer the excoriations and accusations of counsel. But I think, perhaps, with patience there will be an end. So you will please let the matter drop there, and Mr. Isserman will proceed with his questions.

Mr. Isserman: I will proceed, your Honor, but I am again constrained on behalf of my clients to object to your Honor's remark characterizing the questioning which I am indulging in, or suggesting that the questioning is a stalling and delaying tactics, and to the description of this challenge to a jury, which under the law we have a right to make on behalf of our clients, as a new technique(Pp. 1090-1091.)

The Court: Well, perhaps we had better let each one of the counsel for the defendants say a word or two now, because they look as though they desire to state their positions too.

Mr. McCabe, would you like to say something?

Mr. McCabe: I had not intended to say anything, your Honor, but as long as your Honor invites it I would like to express a thought that has been going through my mind for several days: (P. 1091.)

The Court: It might be prejudice, I suppose?

Mr. McCabe: No, it has become clear to me that your Honor is doing the very same thing. Your Honor by constantly referring to our tactics as delaying tactics; by referring to evidence which seems to me to be very clear and precise, as being confusing, and referring to gaps in the testimony—I think that your Honor seems to have in his mind doing the very thing which you, I think un

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