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

(Conduct involved in Specification XXVIII-pp.6936– 6937; June 7, 1949.)

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Mr. Sacher: I am offended on these constant aspersions on the veracity of representations that I make. I am an officer of this court and I resent these

The Court: There was an instance when you deliberately lied to me when they were passing these press releases. You said that they were not and you were caught red-handed.3

Mr. Sacher: That is the most offensive charge that can be made against an officer of the court. Your Honor knew that that was happening in the back part of the courtroom and I was unable to see that. That is one of the most offensive things you can do to a lawyer. What has a lawyer got but his honor.

The Court: That is the first thing you did and you were caught red-handed.

Mr. Sacher: That is the most detestable thing I ever heard from a judge. I resent that and I urge that it be expunged from the record.

The Court: You asked me why I wouldn't take your word for anything and I told you. I might enumerate other incidents were I so inclined. You can get just as violent as you want; the fact is I do not take your word for anything.

Mr. Sacher: I will defend my honor as a member of the bar against your Honor or anybody else. I will not accept a denunciation that I am a liar. When the time comes that I don't have the mental capacity to defend

3 The incident referred to by the judge-reported at pages 4228– 4229 of the record—was the basis for his Specification XV. The conviction of Sacher on that specification was unanimously reversed by the Court of Appeals because that court did not think it was sufficiently clear “that Sacher was attempting to mislead the court." 182 F. 2d 416, 424 425.

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Appendix to Opinion of FRANKFURTER, J., dissenting.

my clients on any other basis than lying I will resign from the bar. I think an idiot resorts to lying. I don't have to do it.

The Court: You did it.

We better let these little amenities go. I can see from your belligerent manner if you thought you could, you might physically come up to the bench and physically attack me. I know your manner, and it doesn't frighten me in the slightest degree. Let's get back to what we were doing. (P. 7029.)

The Court: I have a very definite opinion of you, too, Mr. Crockett.

Mr. Crockett: But I am not speaking about Mr. Crockett.

The Court: But I shall not express it because I see no occasion to do it. I should not have done it to Mr. Sacher, had he not asked me.

Mr. Crockett: I am not speaking about Mr. Crockett, and I am fully aware that you probably do have a very definite opinion as to Mr. Crockett.

The Court: Why, I have never been so insulted and baited, nor have I ever heard of any other judge being so insulted and baited, during the trial as I have by you lawyers representing the defendants here in this case from the 17th of January on, and I will make no bones about it. That is what has been going on, and I have tolerated it because of the reasons I have indicated, but make no misunderstanding as to what I think about it. (Pp. 7030-7031.)

(Conduct involved in Specification XXIX-pp. 70867087; June 9, 1949.)

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

The Court: I see Mr. Sacher smiling.

Mr. Sacher: Your Honor takes awfully good notice about my facial expressions, but when Mr. Gladstein spoke about Mr. Gordon jumping up like a poppinjay you saw nothing.

The Court: Well, you did seem pleased. Now you seem different.

Mr. Sacher: We are under surveillance but you never see anything that the prosecution does.

The Court: That is what you say. It may be because there is nothing done by the prosecution to make it necessary for comment.

I told you some little time ago that I wasn't going to permit you or the other lawyers to get away with anything while I was presiding here and I shall not. (P. 7094.)

The Court: I wish you would stop talking about my nodding my head, scratching my head and pulling my ears. Why don't you leave that all out? What good does that do.

Mr. Isserman: Well, whether your Honor

Mr. Crockett: Pardon me one minute. I think it is very important because there are some things that are not made a matter of record on the Court

The Court: You haven't missed any of them.

Mr. Crockett: -so far as the transcript is concerned. Very frequently I notice in the course of testimony your Honor makes frequent glances over toward the jury or some facial expression that gives the impression, to me at least, that the Court

The Court: Well, it is funny

Mr. Crockett: Pardon me. I think that whenever it is so obvious, as it was a while ago, some mention of it should be made so that it will be carried in the record.

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Appendix to Opinion of FRANKFURTER, J., dissenting .

The Court: If there is something about my winking at the jury or something of that kind, I am surprised that you did not mention it at the time.

Mr. Crockett: No, I have not noticed a winking yet. If I had I would have mentioned it.

The Court: Well, there isn't much that you have missed, but you may just as well go ahead and get it all down and out of your system. I deny that I have ever done anything of the kind. I wouldn't stoop to such a thing, and I do not see how you lawyers have the effrontery to keep saying so. (Pp. 7269–7270.)

Mr. Gladstein: Now your Honor has said that if this exhibit were received it would be unprecedented. Now first of all I think that that wouldn't be an obstacle because a number of unprecedented things have already occurred commencing with the returning of the indictment.

The Court: Ha ha, you know I expected you were going to do that.

Mr. Gladstein: I can't overlook the opportunity nor the necessity to reply to your Honor.

The Court: All right.

Mr. Gladstein: This is an unprecedented case. It presents unprecedented issues. It has been handled in an unprecedented way.

The Court: I'll say it has. (P. 7670.)

Mr. Gladstein: May I say one word?

The Court: If you ever did that, Mr. Gladstein, I think I would drop dead.

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

Mr. Gladstein: When I say one word, I mean it in a lawyer's sense.

The Court: All right. (P. 7676.)

The Court: Well, you accuse me of being an old tyrant and everything under the sun, accuse me of judicial misconduct of various kinds, and I take that in good temper, and you speak about not having a chance to prove your case. You have had ample chance to prove your case and anybody who reads this record can see that you have had. So there is no need of your saying how I cut you out and how I won't take the necessary time. I am going to take the necessary time but I am going to be the one to decide what is necessary. (P. 7929.)

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(Conduct involved in Specification XXX—p. 8045; June 30, 1949.)

The Court: Mr. Sacher, you cannot laugh these things off.

Mr. Sacher: I am not laughing anything off.

The Court: You must have laughed at something, and it is very offensive to me.

Mr. Sacher: It is so obviously unrelated to the case, I cannot imagine why it is being asked.

The Court: Well, I can imagine, and I imagine there are others who can too, and I think, perhaps, that is the reason you are laughing

Mr. Sacher: No, that is not the reason at all.
The Court: -laughing it off.
Mr. Sacher: That is not the reason I am laughing.
The Court: You should stop.

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