Justia Federal District Court Opinions

Eugene Dennis, John B. Williamson, Jacob Stachel, Robert G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John Gates, Irving Potash, Gilbert Green, Carl Winter, and Gus Hall, were indicted in the United States District Court for the Southern District of New York for conspiring (1) to organize as the Communist Party of the United States a society teaching and advocating the overthrow and destruction of the United States Government by force and violence, and (2) to teach and advocate the overthrow of the United States Government by force and violence, contrary to Sections 3 and 5 of the Act of June 28, 1940, commonly known as the Smith Act. (Now 18 U.S.C.A. § 2385.) A jury found the indicted defendants guilty of the offenses charged. The present appeal, however, is not from the judgment of conviction under the Smith Act but only from orders adjudging Sacher, Gladstein, Crockett, McCabe, Isserman, and Dennis, guilty of contemptuous conduct while acting as attorneys during the pendency of the main trial. The question before us here is not as to the merits of the convictions under the indictment but as to the impropriety of the conduct of Sacher, Gladstein, Crockett, McCabe, Isserman and Dennis, which resulted in the adjudication of contempt.

The trial began on January 17, 1949, but selection of the jury was delayed because of a challenge on behalf of the indicted defendants to the entire jury system as administered in the Southern District of New York. This challenge went on from January 17 to March 1, 1949. It finally terminated only when the court fixed a limit for its conclusion, and filed an opinion rejecting the challenge.¹ In that opinion it was held by the court that the system administered in the Southern District was fair and made without discrimination of individuals or groups. After certain motions by defense counsel, the process of selecting a jury commenced on March 8 and was completed on March 17, 1949. Various witnesses for the prosecution were called between March 23 and May 19, when the Government rested after having called thirteen witnesses. The case for the defense was begun on May 23 and concluded, after hearing thirty-five defense witnesses, on September 23. Upon summation by counsel, the court charged the jury on October 13, who rendered a verdict of guilty against all the indicted defendants.

Upon entry of the verdict on October 14, the court, announced: "Now I turn to some unfinished business," and proceeded to read a portion of a contempt certificate and orders, made under Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., convicting the appellants of criminal contempts of court and imposing sentence. These orders imposed a sentence of four months imprisonment on Crockett, and Isserman, thirty days on McCabe, and six months on Sacher, Gladstein and Dennis. The certificate and orders were filed with the clerk immediately after the oral announcement. Each order recited that the named appellant was guilty of the contempts specified against him in the certificate, and sentence was imposed for each contempt with the direction that the sentences be "served concurrently." After the certificate and orders were made, each appellant addressed the court. Isserman objected to the findings in the certificate on the ground they were "wholly unwarranted by anything which has occurred in the course of this trial"; and, in respect to himself, were "but a reflection of the atmosphere of bias and prejudice which this court has shown and with which this entire trial was attended from the first day." He also argued that this was "an effort to intimidate members of the bar in their bounden duty to represent their clients to the best of their ability * * *". He ended by making a motion to vacate the certificate, which was denied.

Sacher recognized that "the power rests in the Court to act summarily," but added that the lawyers should be given "an opportunity to be heard before they are found guilty and sentenced." To this the court replied: "Let me say this to you, Mr. Sacher: as to these contempt adjudications, let them be notice to you and to all who may be tempted to follow your example that there is power in the judicial system of the United States under the Constitution and the laws of the United States to protect and maintain the dignity of the court * * *".

Thereupon, Gladstein stated that he had committed no contempt of court and had done no more than defend the rights of his clients. Crockett made a similar statement, as did McCabe. Finally, Dennis said that: "This trial and the verdict, is an evil and an illegitimate product of a bipartisan conspiracy * * * of men who want to destroy the Bill of Rights and peace, and I think that the adjudgment of counsel * * * is in keeping with the sinister and police state character of this trial."

A copy of the certificate which the judge filed under Rule 42(a) is set forth as an appendix to this opinion.

In preparing and filing the Contempt Certificate, and imposing the sentences, the court purported to act under summary powers conferred by 18 U.S.C.A. §§ 401 and 402.²

Rule 42 of the Federal Rules of Criminal Procedure provides:

"Rule 42. Criminal Contempt

"(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

"(b) Disposition upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment."

In discussing the power to punish without notice or hearing contempts committed in the presence of the court, Justice Harlan said in Ex parte Terry, 128 U.S. 289, 306, 9 S.Ct. 77, 80, 32 L.Ed. 405: "* * * upon the facts recited in the order of September 3d, showing a clear case of contempt committed in the face of the circuit court, which tended to destroy its authority, and, by violent methods, to embarrass and obstruct its business, the petitioner was not entitled, of absolute right, either to a regular trial of the question of contempt, or to notice by rule of the court's intention to proceed against him, or to opportunity to make formal answer to the charges contained in the order of commitment. It is undoubtedly a general rule in all actions, whether prosecuted by private parties or by the government, — that is, in civil and criminal cases, — that `a sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.' Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914. But there is another rule of almost immemorial antiquity, and universally acknowledged, which is equally vital to personal liberty, and to the preservation of organized society, because upon its recognition and enforcement depend the existence and authority of the tribunals established to protect the rights of the citizen, whether of life, liberty, or property, and whether assailed by the illegal acts of the government or by the lawlessness or violence of individuals. It has relation to the class of contempts which, being committed in the face of a court, imply a purpose to destroy or impair its authority, to obstruct the transaction of its business, or to insult or intimidate those charged with the duty of administering the law." See also the remarks of Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 69 L.Ed. 767, to similar effect.

The appellants contend that the judge had no power to punish the defendants summarily because the conduct punished was not "committed in the actual presence of the court," and also because of the punishment imposed did not immediately follow the contemptuous acts. As for the first objection, it seems to be met by the findings in the certificate and many portions of the record that the judge had before him. The second objection we shall deal with after discussing the first. Neither of them, however, seems persuasive.

The argument in support of the first contention is largely based upon the preliminary remarks in the certificate, in which the judge said: "Before the trial had progressed very far, * * * I was reluctantly forced to the conclusion that the acts and statements to which I am about to refer were the result of an agreement between these defendants, deliberatly entered into in a cold and calculating manner, to do and say these things for the purpose of: (1) causing such delay and confusion as to make it impossible to go on with the trial; (2) provoking incidents which they intended would result in a mistrial; and (3) impairing my health so that the trial could not continue."

The judge also said in his preliminary remarks that he would have overlooked the contemptuous conduct of counsel, or would have at most merely reprimanded them, if their conduct had appeared to be the result of the heat of controversy or zeal in the defense of a client rather than deliberate contempt. The appellants argue that the judge punished them because he found they were engaged in a conspiracy though he could not have witnessed the actual making of a joint agreement. But if the appellants' conduct described in the certificate was contemptuous and obstructive and involved contumacious acts at the trial, those acts were committed within the judge's sight and hearing. The judge's conclusion that they were the result of an agreement meant no more than that they were deliberate, and it was quite unimportant whether he believed that a prior conspiracy had been entered into. Indeed, he never said that such a conspiracy had been formed. He saw and heard the appellants deliberately delaying the trial, disregarding his orders, and accusing him of wrongdoing and corruption. This was enough to show wilful obstruction of the trial. There is nothing in his certificate indicating that there were any acts other than those which he saw and heard that determined his conclusions. Even if he regarded the appellants' conduct as the result of an agreement made outside the courtroom, that view is unimportant and would not limit his power to impose summary punishment for contempt. His punishment could no more be revised because he held that view than could a sentence for an ordinary crime be reversed because the judge felt and said that a defendant had shown himself such an undesirable citizen in other transactions as to merit the imposition of unusually severe treatment. His reason for the length of the sentence would not affect its validity and should be ignored on appeal. The situation in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, was quite different, for it there appeared that the fact which caused the judge to impose a long sentence was his erroneous information that the defendant had been previously convicted on certain charges, and that a sentence affected by that mistake was imposed upon a defendant who did not have the benefit of counsel.

The record appears to justify the findings in Specification I of the Certificate that the appellants "joined in a wilful, deliberate, and concreted effort to delay and obstruct the trial * * * for the purpose of causing such disorder and confusion as would prevent a verdict by a jury on the issues raised by the indictment; and for the purpose of bringing the Court and the entire Federal judicial system into general discredit and disrepute. * * *" It likewise bears out the findings of obstructive and contemptuous conduct with which the defendants are charged in subdivisions a. to m. of that specification. There seems to have been ample reason for the court's conclusion that the attacks on Judge Knox and the other judges of the Southern District and on the jury system, the Justice Department, the police, the newspapers and the President of the United States were launched with a similar purpose to divert the jury from the real issues, and to convert the case into a trial of the Government, rather than the indicted defendants.

When the indictment was moved for trial on January 17, 1949, defense counsel asked for a 90 day continuance on the ground that armed police in the Court House and newspaper accounts would prevent a fair trial. They also asked for a courtroom larger than the one in which the court was sitting so as to admit a larger public. On the denial of these motions the court on January 18 began consideration of the defendants' challenge to the jury panel and to the jury system as administered in the Southern District of New York — a challenge which it entertained although a similar one had been made on November 12 and withdrawn on November 16 preceding. Counsel then contended that the challenge should not be heard by any judge of the Southern District of New York, and in any event that Judge Medina should not sit because they might desire to call him as a witness. The judge stated that he had not participated in the local jury system, to which Sacher replied that even if he had not participated, a "lack of participation might legally, despite its paradoxical aspect, be regarded as participation * * *".³ After counsel had separately refused to state whether they expected to call the judge as a witness, he ruled that if called he would refuse to testify. Such conduct by appellants was dilatory and obstructive. They then proceeded to call a member of the petit jury panel for the January 1949 Term named Allen and asked him what was "the assessed valuation of the home" in which he lived. The judge ruled that the witness might be asked whether he owned property in excess of the amount required to qualify for jury service, but could not be asked in detail of what his property consisted. After protracted arguments by Sacher, McCabe and Isserman, the original ruling was adhered to, which precluded details as to the juror's economic status. In spite of this, Isserman and Sacher continued to interrogate the witness as to details of his property holdings, his income, other information such as had been excluded by the court in previous rulings, and many quite irrelevant matters. These questions continued over many pages of the record. The prior rulings and objections were entirely sufficient to protect any rights which the indicted defendants had on appeal, and the repeated questions appear to have involved obstructive and dilatory tactics. In spite of this, the appellants called three more witnesses who were members of the petit jury panel and subjected them to the kind of detailed questions which had been excluded in the case of Allen. Upon the calling of Flanagan, a fifth member of the petit jury panel, the judge ruled that he would hear no more members of that panel until some direct proof of discrimination was furnished. Long and repetitious arguments then followed protesting against the rulings of the court and covering many pages of the record. Thereupon, the defendants' counsel called one Wilkerson, who testified that he had supervised the preparation of the statistics purporting to show disproportionate and discriminatory selection of the jurors in the Southern District.

On February 4, a question was asked and excluded, with repetitious and concerted arguments against the ruling by Isserman, Gladstein, Sacher, and McCabe.⁴ Later during the same day, after a further question had been excluded by the judge, arguments of like character were made by Isserman, McCabe, Sacher and Crockett.⁵ One has only to read these and many other arguments against the judge's rulings to be convinced that the conduct of the appellants was concerted and wilfully obstructive. At length on February 8, the court remarked: "* * * There has been a wilful, deliberate and concerted effort here to delay the proceedings. And I am going to see what I can do to prevent any further delay. * * * At first I couldn't think it possible, and then it began to dawn on me that maybe that is what was going on. And I mentioned it two or three times but it did not have any effect. And finally it has come to my mind that such is the fact, and I so find."⁶

Later the court said: "The finding I made the other day was based not only upon occurrences that appear in the minutes but upon what I have observed in the conduct of counsel before me here, sneering, snickering, obvious indications of one to another, `Get up, it is your turn now, go at it next, keep this thing going,' and so on."⁷

In spite of this, counsel continued their arguments and objections regardless of the ruling of the court that an objection by one would inure to the benefit of all. On February 25, the judge had been so overwhelmed by talk that he ruled that he would receive no further argument on motions and objections, except where he requested it, and directed the defendants so to limit their proof on the jury challenge, that the trial could begin on March 7.

After the challenges were rejected and the actual trial had begun on March 7, a new motion for an adjournment of 90 days was made and denied. Moreover, Gladstein again attempted to challenge the array of jurors and to dismiss the petit jury panels of March 1 and March 7, and to introduce evidence and argue about these matters. Thereafter, there were repetitious objections and arguments on the question of the allowance of what appellants claimed were the proper number of peremptory challenges, and protests because of the examination of jurors on the voir dire by the court rather than by counsel. Further attacks upon the petit jury panel, with irrelevant allusions to the so-called "Jim Crow" policy of the Metropolitan Life Insurance Company in its Stuyvesant Town development, were made, and there were irrelevant arguments by Dennis as to the Chinese situation, the Greek situation, the State of Israel, German and Japanese monopolies, and the Marshall Plan. Repetitious arguments were made by Dennis, Sacher, Isserman, McCabe, Gladstein, and Crockett about taking the deposition of Foster, as to whom the case had been severed.

There were motions, accompanied by lengthy and repetitious argument, to strike out practically all the testimony of the first Government witness Budenz and the exhibits introduced during his examination. On April 4, Gladstein persisted in pressing a line of cross-examination of Budenz which the judge had ruled out, and made insistent arguments when told to turn to other questions. On the same day, after Isserman had embarked on repetitious argument under the guise of stating his grounds of objection, the court ruled that neither Government nor defense could argue or state grounds of objection without permission of the court.

On April 25, when the judge had limited the introduction of a book by Karl Marx on "Value, Price and Profit" to such portions as might be shown to be relevant, repetitious objections were made by Gladstein, Sacher, and Dennis, until the judge was forced to leave the bench temporarily in order to stop the refusal by Dennis to obey his orders to abstain from argument.

On May 11, the judge announced that out of 8860 pages of the record already made, at least 1554 pages represented argument by defense counsel, without counting the testimony or what had been said by the attorneys for the Government, or by himself. In addition to persistent argument — often contrary to direct command of the court — the record shows frequent provoking statements and objections by the appellants concerning trivial matters.

On May 17, the judge said that he had "observed a number of things here which have impressed me as having been done solely for purposes of delay, perhaps to drag out this case for an indefinite period; * * *. Now, for example, I have observed as to exhibits, that an extremely long period is taken for the passing around of the exhibits, turning them over and over and passing them around, and 20 minutes or a half hour go by; and it seems to me that perhaps we can be a bit more expeditions."⁸

On June 3, one of the indicted defendants, Gates, was remanded to the custody of the marshal for refusing to answer a question on the witness stand, and the indicted defendants Hall and Winston were likewise remanded for the balance of the trial. The latter two, as well as Dennis, acted in an obstreperous and contemptuous manner. In the turbulent scene which accompanied the rulings of the court, none of the appellants attempted promptly to restore order. Indeed, Gladstein, when asked by the judge if he did not think it would be prudent for the defendants to resume their seats, insisted that the court first rule upon his frivolous claim that the question put to Gates about the names of persons who were members of a committee involved a violation of constitutional rights.⁹ This court has since held that the question was proper, and that the refusal to answer it was a contempt, and has affirmed Judge Medina's orders remanding Hall and Winston, and punishing Gates.¹⁰

On August 3, during the direct examination of Mrs. Lightfoot by Isserman, she was asked some questions by the court which Gladstein constantly objected to for no valid reasons. Finally, the questions were abandoned because of sheer obstruction whereupon Dennis ended the incident by moving for a mistrial because of the alleged hostile attitude of the court to the witness.

Throughout the remainder of the trial, there were persistent obstructive colloquies, objections, arguments, and many groundless charges against the court by the appellants of judicial misconduct. But since Judge Clark is of the opinion that none of the specifications should stand, and Judge Frank has concluded that the first specification should not stand, the orders will be affirmed upon the basis of certain later specifications.

Sacher

The following additional findings of contemptuous acts and misconduct by Sacher are contained in the later specifications of the judge's certificate:

In Specification II, he charged that if the court was not to allow questions as to the economic status of the petit juror Allen, "this hearing is no hearing; it is just a sham and a pretense designed to prevent the establishment of those facts which will prove that the system is precisely what we say it is."

In Specification V, he said: "This is an Alice in Wonderland procedure. We always get the sentence first and then the trial. * * * Is it because the evidence is becoming too devastating for the Government that we must now be circumscribed? * * *"

In Specification VI, he charged the judge with making certain rulings because of the presence in court of a large number of newspaper reporters.

In Specification VII, he indulged in persistent argument that the judge should change his ruling and permit general testimony as to the qualification of the inhabitants of the 18th Congressional District for jury service. This he did in addition to the argument to the same effect by Isserman, McCabe and Crockett.

In Specification VIII, he insolently suggested that the judge was favoring government counsel by giving the latter advance notice of when he would be called upon to proceed with his proof in respect to the challenge to the jury system.

In Specification XII, he made a sarcastic reference to Judge Knox which was accompanied by a somewhat similar reference by Isserman to Judge Medina. Neither remark was calculated to do anything but annoy the court and confuse the issues.

In Specification XIV, he charged the court with making a provocative remark, and added that "lawyers who are defending their clients for their liberty should not be treated as though they were dogs in the courtroom * * *".

In Specification XVI, he said that: "No observations from the bench" would change his form of procedure. And when the court added that "you never can tell what will happen," Sacher replied: "With your Honor up there I suppose that is true."

In Specification XVII, he charged the court with preferential and unfair treatment by saying: "I see, only Mr. Gordon and Mr. Nicodemus may speak."

In Specification XIX, after argument by Gladstein and Dennis in support of the introduction in evidence of an entire book, Sacher impertinently remarked: "* * * we are being stopped from proving the truth."

In Specification XXV, he indulged in argument with the judge contrary to the latter's rulings.

In Specification XXVII, Sacher, instead of trying to quell the uproar when Gates had been remanded by the court, joined in making the absurd contention that Gates was entitled to disobey the court by invoking rights under the Fifth Amendment to the Constitution.

In Specification XXVIII, he again was reprimanded for argument and shouting.

In Specification XXIX, he claimed that the witness Green was being "crucified unnecessarily with interrogations."

In Specification XXX, he interjected in respect to the cross-examination of the defendant Green, though he did not represent the latter, "I would like to quote the court and say: `This is very small picking.'"

In Specification XXXI, he accused the court of "[unjustified] remarks * * * designed to prejudice the jury against the defendants."

In Specification XXXIII, he virtually accused the court of an unjust ruling and persisted in arguing.

In Specification XXXVI, he persisted in argument and in effect charged the court with favoring the Government counsel.

In Specification XXXVII, he charged the court with seeking to prejudice the jury against defense counsel.

In Specification XXXIX, he impertinently said: "Will there come a day, your Honor, when you will hear us?"

In respect to Specifications XV and XVIII, which are printed in the Appendix, the gist of each charge seems to be that Sacher was attempting to mislead the court. This we do not think is sufficiently clear and we, therefore, hold that the convictions under Specifications XV and XVIII, as well as under Specification I, should be reversed, but that his other convictions should be affirmed.

Sacher's contention that on January 26, 1949, the judge exculpated him from any charge of misconduct when he said that Sacher had thus far spoken "in good taste" would, at most apply only to Specification II, and leaves him vulnerable as to that specification in view of his many later acts of misconduct which colored prior transactions.

Gladstein

The following findings, in addition to those of Specification I, were made as to Gladstein:

In IV, during the challenge to the jury system, he charged the court with prejudgment; and later, when invited to submit a memorandum of law, said that he would "if there is any possibility of having the effect of [the] authorities respected." Upon the court's criticizing him for his impertinent insinuations, he added: "It isn't half of what I felt like saying, your Honor, as a result of what you said."

In VI, he contemptuously persisted in burdensome argument.

In VIII, during the jury challenge, he in effect angrily charged the judge with keeping out evidence because he didn't like the way Gladstein and his colleagues had been behaving.

In X, he asked the judge to reconsider his ruling with respect to a document which he had declined to admit in evidence, and said: "upon the pretext that this is a confidential document, * * * you are preventing me from showing * * * the corruption of the system here in so far as they placed in charge of it a man who was the director of a dozen corporations, * * *". In spite of a reprimand by the judge and his direction to desist from arguing, Gladstein continued.

In XI, after the court had excluded Gladstein's offer of "Poor's Register of Directors," he said: "I thought when you heard the facts you would, Judge."

In XII, during the cross-examination by the Government of the witness Darr, Gladstein made persistent arguments and objections, and after the court had overruled them and instructed the witness to answer questions and not make a speech, as he had done, objected "to the Court's gratuitous and improper characterization of the witness' testimony, as an effort to make a speech * * *".

In XIII, he persisted in arguing in support of questions which had been ruled out by the court, and, after directions by the latter to desist, said: "They do represent the truth and I intend to show that they do."

In XVIII, Gladstein argued in the presence of the jury that the court should tell them that the witness Nicodemus, whose credibility was being attacked by the defense, was guilty because he had had to pay costs, although the court had held that the payment of costs did not affect a final judgment that Nicodemus was not guilty.

In XX, he offensively charged the judge with sustaining anticipated objections to his questions before the objections were stated. It was in effect a charge of bias.

In XXIII, he again charged the court with impropriety and partiality.

In XXIV, he persisted in argument, though it had been forbidden.

In XXVI, when the court again stated that it did not desire to hear arguments unless it requested them, he said that "the Court is now making it plain that it no longer wishes to hear evidence from the defendants, and that began to be true when the defense began to put in its case."

In XXVII, when there was disorder in the courtroom upon the sentencing of Gates for refusal to answer questions as directed, the judge suggested that it would be "prudent if the defendants resumed their seats." But Gladstein proceeded to argue that Gates had the right to disobey the court's direction because of immunity under the Fifth Amendment to the Constitution.

In XXXI, during the cross-examination by the Government of the witness Yolanda Hall, Isserman, Gladstein, Dennis, and Sacher in succession interrupted, argued, and made vexatious objections. When the judge tried to curb them, they moved for a mistrial, and claimed the court was prejudiced.

In XXXII, during the direct examination of Geraldyne Lightfoot by Isserman, he and Gladstein by obstructive tactics succeeded in preventing her from answering a question by the court. Gladstein charged the court with bullying the witness, and made unreasonable objections in which Dennis finally joined. Gladstein charged the court with "misconduct," and when the Government attorney stated that there had been no badgering of the witness, impertinently remarked that he was "willing, if your Honor will permit, to have a poll taken of the members of the jury and the people of the press and the people in attendance * * *". The acts set forth in XXXII, were clearly outrageous and prevented an orderly trial.

In XXXIV, after the judge ruled on a question put to the defense witness Thompson, Gladstein proceeded to argue against the ruling and charged the judge with partiality on the ground that he had made an inconsistent decision when the government witness Budnenz was being examined.

In XXXV, during the direct examination of the witness Strong, the court sustained an objection to a question by Gladstein and stated that it wanted no argument; whereupon Gladstein, in an improper aside to the jury, said: "Well, that is no secret."

All of these convictions of Gladstein were supported by the facts and should be affirmed.

Crockett

The following findings, in addition to those of the first specification, were made as to Crockett:

In III, he impertinently charged the judge with favoring the United States Attorney over the attorneys representing the indicted defendants.

In VII, after the judge had warned defendants' counsel that he wished no more argument, Crockett continued the arguments already made by Isserman, McCabe and Sacher, until warned that he was acting in defiance of the court's request.

In XXI, he suggested that the court had improperly obtained knowledge of the Government's evidence, saying: "I don't think it is customary for the Court to show such familiarity * * * with proof that the Government might present."

In XXII, he improperly charged the court with prejudicial rulings and bias.

In XXVII, the disorder in the courtroom accompanying the sentence of Gates and the remand of Winston and Hall was in no way relieved by Crockett, who joined the other attorneys and the indicted defendants in rising in the courtroom, and made no attempt to have his clients Winter and Stachel resume their seats.

In XXIX, in the course of the examination of Gates, he offensively and irrelevantly said in the presence of the jury: "May the record show that this is the fifth day of the witness' imprisonment in jail."

In XXXVII, he persisted in objections in spite of the previous rulings of the judge and warnings that argument was not desired.

In XXXVIII, he obstructed the trial by continuing argument and charging the judge with having a mind "closed to any grounds that I might state." He also offensively remarked that the judge's mistake in reading too much of an exhibit to the jury was "seemingly unintentional."

All of these convictions of Crockett are supported by the record and should be affirmed.

McCabe

The following findings, in addition to those of the first specification, were made as to McCabe:

In VI, after protest by the court at reiterated arguments and discussions of the latter's rulings by Gladstein, Sacher, and McCabe, McCabe made the offensive suggestion that the judge's observation that counsel were trying to provoke him and were wasting time "may very well be addressed to someone outside of this courtroom, * * *".

In VII, — in company with Isserman, Sacher and Crockett — he continued to argue after it was clear the court desired no further argument.

In VIII, he sarcastically remarked that "the way in which this case has been conducted is one which I certainly hoped I would never see in a court of justice."

In IX, he charged the judge with picking 11:20 and 3:20 for statements by the latter that counsel were wasting time because 11:30 and 3:20 were deadlines for the newspapers. Later,¹¹ when the court warned him about his conduct and said that it would not be dealt with then but would be later, he reiterated that his earlier charge that rulings were made for newspaper deadlines "was accurate."

In XXVII, upon the sentence of Gates and the remand of Winston and Hall, he failed to take any steps to help restore order in the courtroom.

All of these convictions as to McCabe are supported by the record and should be affirmed.

Isserman

The following findings, in addition to those of the first specification, were made as to Isserman:

In VI, after the judge during the challenge to the jury system had sustained an objection to questions regarding low-rent housing projects and had told Isserman that he did not wish to hear arguments, Isserman, notwithstanding, proceeded to argue in conjunction with Gladstein, Sacher, and McCabe.

In VII, Isserman persisted in argument, and charged the court with misconstruing a statement that he had made and with improperly characterizing his conduct.

In XII, he interjected the sarcastic comment that the membership of the witness Darr in American Youth for Democracy had no more bearing on Darr's credibility than the fact that the judge was "in the Social Register."

In XXVII, he was charged with making no attempt to quell disorder when Gates was sentenced for refusing to answer a question and Winston and Hall were remanded for turbulent conduct. Instead of this, Isserman furthered the futile argument that Gates was entitled to disobey the order of the court because of his rights under the First and Fifth Amendments.

In XXXI, when the court admonished Isserman not to argue, he objected to the holding of the court that his action was deliberate and moved for a mistrial.

The cross-examination of the witness Yolanda Hall was constantly interrupted by objections and arguments from Isserman, Gladstein, Sacher, and Dennis.

In XXXII, during the examination of the witness Lightfoot by Isserman, the latter said that a question by the court made the defense "impossible," and, with the support of Gladstein, succeeded in blocking the inquiry.

All of these convictions as to Isserman are supported by the record and should be affirmed.

Dennis

The following findings, in addition to those of the first specification, were made as to Dennis:

In XIX, he persisted in argument contrary to the instructions and warning of the court. In this connection the judge found it necessary to adjourn for five minutes to prevent Dennis from continuing to flout his direction.

In XXII, Dennis charged the court with an "outrageous and arbitrary ruling" because the defendants were not granted an adjournment after the Government had completed its case, and characterized one of the court's rulings as a "mockery of justice" and as a prejudgment of the case. He also made other violent characterizations of the judge's action.

In XXXI, he asked whether "the ruling and remarks of the court are directed to the defendants and counsel as to prejudice our case before the jury?" He further stated that "for all intents and purposes the defendants are deprived of counsel and deprived of what is set forth in the Sixth Amendment to the Constitution."

In XL, he charged the court with an "act of gross discrimination and an affront to the Negro people" because the judge had refused to allow Davis to sum up rather than the latter's attorney.¹²

All of the convictions of Dennis are supported by the record and should be affirmed.

It is evident from the specifications in the certificate that the judge was confronted with many contemptuous remarks by the appellants and many obstructive refusals to obey his orders. However, he took no immediate action to punish them for contempt. If he had done so, the result would have been to leave the indicted defendants without effective counsel or with the necessity of choosing new counsel — a procedure involving interminable delay. He therefore abstained from any immediate punishment but again and again warned the appellants that their conduct was improper. Illustrative of such warnings, is his statement to McCabe on June 3: "[Were] it not for the fact that I have determined that this trial shall not be disrupted by such things I should have taken action against you and against each of your colleagues long before this, but I shall not do it. I shall leave that to the proper authorities to take care of in due course, and there it shall rest, but you need be under no misapprehension; I have been quite fully cognizant of your contemptuous conduct and your impudence."¹³ Many of the occasions on which he warned them are set forth in the margin.¹⁴

We now reach the appellants' second objection based on their contention that the judge could only impose summary punishment immediately upon the commission of their acts of contempt. The validity of such an objection was left open in Ex parte Terry, 128 U.S. at page 314, 9 S.Ct. 77, 32 L.Ed. 405, and again in Pendergast v. United States, 317 U.S. 412, 419, 63 S.Ct. 268, 87 L.Ed. 368. The appellants argue on this appeal that the judge could not withhold summary punishment until the end of the long trial, and rely largely on the language of Mr. Justice Holmes in his dissenting opinion in Toledo Newspaper Co. v. United States, 247 U.S. 402, 423, 38 S.Ct. 560, 565, 62 L.Ed. 1186, where he said that to his mind the words of the statute "point only to the present protection of the Court from actual interference, and not to postponed retribution for lack of respect for its dignity * * *". Likewise in his dissenting opinion in Craig v. Hecht, 263 U.S. 255, 280, 44 S.Ct. 103, 107, 68 L.Ed. 293, he said: "It seems to me that the statute on its face plainly limits the jurisdiction of the judge in this class of cases to those where his personal action is necessary in a strict sense in order to enable him to go on with his work." But in these opinions the Justice was only dealing with criticism of the judge outside the court during the pendency of a suit and was saying that such criticism was not within the prohibition of the statute because it was not in the presence of the court or "so near thereto as to obstruct the administration of justice". That view the Supreme Court has sanctioned in Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172. But it has expressly left open the question whether, where a judge has power to punish without notice and hearing a contempt in open court, he must impose sentence immediately after the contempt is committed. This is the question before us.

Not only did the remarks of Justice Holmes, which we have quoted from 247 U.S. at page 423, 38 S.Ct. 565, and 263 U.S. at page 280, 44 S.Ct. 107, relate to situations that are not before us here, but his statement that the language of the statute points ony to the "present protection of the Court from actual interference" and confines its jurisdiction to cases "where his personal action is necessary * * * to enable him to go on with his work" can hardly be applied literally to every case since no summary punishment can prevent obstructive acts already completed inasmuch as it must follow them. For example, in the Terry case the misconduct was complete and the particular case was over, so that summary punishment was not necessary to enable the court "to go on with" its work, yet it was imposed. The quoted remarks of Justice Holmes were evidently intended to give salutary warning against the unnecessary exercise of the power to punish for contempt and did not contemplate a case like the present, where it would have been necessary either to abandon all attempts to curb disorderly and contemptuous conduct or very seriously to interfere with the progress of the trial. The course adopted by Judge Medina warned the appellants that they were misconducting themselves at their peril. It tended to prevent further obstruction, and also demonstrated that its orders and warnings were not in vain by punishing the offenders, after the verdict was recorded, for flouting its authority. Any other treatment of the contemptuous action would have been self-defeating.

The opinion of Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767, should be read in the light of the facts of the case before him. When he spoke, 267 U.S. at page 536, 45 S.Ct. at page 395, of "immediate penal vindication of the dignity of the court", we think that he meant as speedy vindication as was practicable under the circumstances, and could not have required steps which would have broken up the trial or frustrated the powers of the judge to vindicate his authority after it had been flouted in open court. Nor do we think that the language of the Supreme Court in In re Oliver, 333 U.S. 257, 274, 68 S.Ct. 499, 92 L.Ed. 682, contemplates the limitation which appellants' counsel contend for. There is no doubt that the power to punish summarily without a hearing should be exercised with great circumspection. We are in no way indicating that a lax, importunate exercise of it ought to be sanctioned. We merely hold that the acts of these appellants were intolerably obstructive to an orderly trial and merited summary punishment, and that the mode of dealing with them adopted by the court was justified under the circumstances.

The conclusion we have reached in overruling the appellants' second objection is borne out by a decision of the Ninth Circuit,¹⁵ and by several decisions in the state courts where summary punishment for contempt was imposed under statutes similar to the one governing the case at bar. They are all to the general effect that the punishment should follow the acts of contempt with reasonable promptitude, but that the degree of promptitude depends upon the particular facts of each case, and that the punishment need not follow immediately if such an imposition would endanger the defense in a criminal case, or interfere with its conduct. We cite these decisions in the margin,¹⁶ and in addition quote from the opinion of the Supreme Court of Minnesota¹⁷ which clearly states the reasoning applicable to cases involving the summary disposition of contempts committed in open court:

"Jurisdiction to punish for a direct contempt attaches the instant the contempt is committed, and continues at least so long as may be necessary to afford the court a reasonable opportunity to vindicate its authority at a time and under circumstances where its action will have no untoward effect upon the business in which the court was then engaged. A court may, and usually does, impose punishment for a direct contempt at the time the offense is committed, but it does not follow that jurisdiction is lost by waiting for a more fitting or convenient time.

"We know of no law or rule requiring the court to suspend a trial for the purpose of passing judgment on a contemner and making the necessary record thereof. Where a defendant is on trial for a grave crime, it might result in serious prejudice to him if his attorney were to be adjudged guilty of contempt and subjected to punishment therefor in the midst of the trial. While the court may punish a direct contempt instanter, yet, if of opinion that imposing punishment at that time would be unwise, or that prejudice to some of the parties before the court might ensue therefrom, it may defer action in the interest of justice and fairness, and does not lose jurisdiction by doing so.

"Of course the power to punish as for a direct contempt must be exercised promptly, if exercised at all; but the time within which it must be exercised is not well defined, and depends in a large degree upon the facts and circumstances of the particular case. In the present case the power was exercised as soon as the jury had retired and before the verdict was returned; and we are clearly of opinion that jurisdiction to exercise it would continue at least until the trial was fully completed.

Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405. * * *"

The chief defense which appellants make for their obstructive tactics and impudent charges is that the judge provoked them by making what they consider indefensible rulings in the case. The validity of these rulings is not before us on this appeal. But it must be borne in mind that when counsel differ as to the rulings of a judge, they acquire no privilege to charge him with bad faith and misconduct, and to obstruct the trial. Their only remedy is by an appeal.

The order sentencing the appellant Sacher is affirmed except for Specifications I, XV and XVIII, as to which it is reversed. The orders sentencing appellants Gladstein, Crockett, McCabe, Isserman and Dennis are affirmed except for Specification I, as to which they are reversed.

APPENDIX

Contempt Certificate

In conformity with Rule 42(a), Federal Rules of Criminal Procedure, I hereby certify that the series of criminal contempts set forth below were committed in the actual presence of the Court and were seen or heard by the Court during the trial of the case of United States of America v. Foster et al., C 128-87, which commenced on January 17, 1949.

By way of preliminary, I may say that I would have overlooked or at most merely reprimanded counsel for conduct which appeared to be the result of the heat of controversy or of that zeal in the defense of a client or in one's own defense which might understandably have caused one to overstep the bound of strict propriety. Before the trial had progressed very far, however, I was reluctantly forced to the conclusion that the acts and statements to which I am about to refer were the result of an agreement between these defendants, deliberately entered into in a cold and calculating manner, to do and say these things for the purpose of: (1) causing such delay and confusion as to make it impossible to go on with the trial; (2) provoking incidents which they intended would result in a mistrial; and (3) impairing my health so that the trial could not continue.

I find that the acts, statements and conduct of each of the defendants, hereinafter specified, constituted a deliberate and wilful attack upon the administration of justice, an attempt to sabotage the functioning of the federal judicial system, and misconduct of so grave a character as to make the mere imposition of fines a futile gesture and a wholly insufficient punishment. To maintain the dignity of the court and to preserve order in the court room, under these circumstances, was a task of the utmost difficulty. There was, accordingly, no alternative than to give the repeated warnings which from time to time I gave, and to postpone the impositions of the sentence until the close of the case. To have done otherwise would inevitably have broken up the trial and thus served the ends which these defendants tried so had to attain. As isolated quotations from or references to the transcript can give but a partial view of the acts, statements, and conduct above referred to, I hereby make the entire record part of these proceedings.

Accordingly, I adjudge the following guilty of the several criminal contempts described below:

    Defendant                   Specifications

  Harry Sacher              I, II, V, VI, VII, VIII,
                            XII, XIV, XV, XVI,
                            XVII, XVIII, XIX, XXV,
                            XXVII, XXVIII, XXIX,
                            XXX, XXXI, XXXIII,
                            XXXVI, XXVII, XXXIX.
  Richard Gladstein         I, IV, VIII, X, XI, XII,
                            XIII, XVII, XX, XXIII,
                            XXIV, XVIII, XX, XXIII,
                            XXIV, XXXII, XXXIV,
                            XXXV.
  George W. Crockett, Jr.   I, III, VII, XXI, XXII,
                            XXVII, XXIX, XXXVII,
                            XXXVIII.
  Louis F. McCabe           I, VI, VII, VIII, IX,
                            XXVII.
  Abraham J. Isserman       I, VI, VII, XII, XXVII,
                            XXXI, XXXII.
  Eugene Dennis             I, XIX, XXII, XXXI, XL.

During the entire trial Messrs. Sacher, Gladstein, Crockett, McCabe, and Isserman, attorneys and counsellors-at-law, and after March 17, 1949, Mr. Dennis, attorney pro se, joined in a wilful, deliberate, and concerted effort to delay and obstruct the trial of United States v. Foster et al., C 128-87, for the purpose of causing such disorder and confusion as would prevent a verdict by a jury on the issues raised by the indictment; and for the purpose of bringing the Court and the entire Federal judicial system into general discredit and disrepute, by endeavoring to divert the attention of the Court and jury from the serious charge against their clients of a conspiracy in substance to teach and advocate the overthrow of the Government of the United States by force and violence, by attacking the Presiding Judge and all the Judges of this Court, the jury system in this District, the Department of Justice of the United States, the President of the United States, the police of New York City, and the public press of New York and other cities.

To effect this plan, these defendants in this proceeding, contemptuously and without justification:

a. Disregarded numerous warnings of the Court concerning their wilful delaying tactics, except for ironical references thereto;

b. Suggested that various findings by the Court were made for the purpose of newspaper headlines;

c. Insinuated that there was connivance between the Court and the United States Attorney;

d. Insisted on objecting one after another to rulings of the Court, despite a ruling on the first day of the trial, repeated several times thereafter, that all objections and exceptions would inure to the benefit of each of their clients unless disclaimed;

e. Persisted in making long, repetitious, and unsubstantial arguments, objections, and protests, working in shifts, accompanied by shouting, sneering, and snickering;

f. Urged one another on to badger the Court;

g. Repeatedly made charges against the Court of bias, prejudice, corruption, and partiality;

h. Made a succession of disrespectful, insolent, and sarcastic comments and remarks to the Court;

i. Disregarded repeatedly and flagrantly the orders of the Court not to argue without permission and to desist from further argument or comment;

j. Disregarded rulings on the admissibility of evidence so as to endeavor to place before the jury by leading questions the subject matter excluded;

k. Persisted in asking questions on excluded subject matters, knowing that objections would be sustained, to endeavor to create a false picture of bias and partiality on the part of the Court;

1. Accused the Court of racial prejudice without any foundation; and

m. Generally conducted themselves in a most provocative manner in an endeavor to call forth some intemperate or undignified response from the Court which could then be relied upon as a demonstration of the Court's unfitness to preside over the trial.

On January 21, 1949, during the hearing on defendants' challenge to the jury system, Herbert Allen, a member of the petit jury panel for the January Term of Court, was called as the first witness in support of the challenge. During this direct examination by Mr. Gladstein, Mr. Allen was asked for the assessed valuation of his home, to which question an objection was sustained. Thereafter, lengthy argument was directed to the Court by Messrs. Gladstein, McCabe, Isserman and Sacher, which was brought to a conclusion with Mr. Sacher shouting at the Court (Ch.Tr. 1390): "Well, let me make one thing clear; your Honor said that you were going to conduct a hearing, and I tell you now if what you are going to do is to prevent us from asking these questions and proving the fact, then this hearing is no hearing; it is just a sham and a pretense designed to prevent the establishment of those facts which will prove that the system is precisely what we say it is."

On February 2, 1949, during the challenge to the jury system, Harry Rosten, Research Manager for The New York Times, was being questioned by Mr. Isserman about Challenge Exhibit No. 20, already in evidence. Objection was made to the line of question being conducted by Mr. Isserman, and following argument, the Court sustained the objection. Thereupon Mr. Gladstein and Mr. Sacher further argued the matter. They were followed by Mr. Crockett, who did not argue but limited himself to the insinuation quoted below (Ch.Tr. 2302): "I have only one comment to make, your Honor. I have listened very carefully to the proceedings during the whole time this was going on and what surprises me, frankly, your Honor, is the frequency with which Mr. McGohey will make an objection and the Court will sustain the objection without asking Mr. McGohey to state the reasons for his objection or giving us an opportunity to suggest to the Court the reasons why the objection should be overruled."

IV

On February 3, 1949, during the challenge to the jury system, defense counsel and the Court engaged in a discussion, in the course of which Mr. Gladstein, in an insolent manner, said (Ch.Tr. 2461): "Now although everybody, one would think, who did not prejudge the matter here —" and, after interruption, continued (Ch.Tr. 2463):

"Mr. Gladstein: Now, before the Court's interruption I was about to point out that what is important here is the question of your Honor's determinations upon the objections Mr. McGohey has raised, and sometimes even without him suggesting it —

"The Court: Yes, maybe I have a right to make a comment from the bench once in a while. It seems probably wrong to you and your colleagues, but it is commonly done, and I have no intention whatever of refraining.

"Mr. Gladstein: I wansn't referring to your Honor's comments, because they are always welcome. I was referring to the rulings that you make adverse to the defendants even before the United States Attorney opens his mouth to make an objection. That has happened."

After further colloquy, during which the Court invited a memorandum from Mr. Gladstein in respect to the admissibility of certain proof, Mr. Gladstein continued his reflection on the Court's integrity, as follows (Ch.Tr. 2466-2467):

"Mr. Gladstein: And it is not an easy task to research the authorities and present them to you on the question of the admissibility of this kind of data which is obtained by sampling methods. But if your Honor, if there is any possibility of having the effect of those authorities respected and obtaining a reconsideration of the ruling that your Honor has taken, I will certainly do whatever I can to get that memorandum of law to the Court.

"The Court: I try to respect all authorities, those that are controlling and those that are persuasive. I try to do my duty as a Judge. I do not think it is very nice of you to put in that little insinuation, but I take it in good part. And so we will pass it.

"Mr. Gladstein: Very well. It isn't half of what I felt like saying, your Honor, as a result of what you said.

"The Court: Well, I can well believe that."

On the same afternoon, after hearing lengthy argument by Mr. Gladstein (Ch.Tr. 2483-2489), the Court sustained a Government objection to certain evidence proffered through the witness Wilkerson. After a recess granted at Mr. Sacher's request, Mr. Crockett and Mr. Sacher argued for a reconsideration of the ruling (Ch.Tr. 2490-2501). Continuing the attack of defense counsel upon the court and completely ignoring the fact that the Court had heard Mr. Gladstein at length before ruling, Mr. Sacher loudly complained (Ch.Tr. 2494): "I repeat, this is an Alice in Wonderland procedure. We always get the sentence first and then the trial. Now, if we would just get back to ordinary procedure with trial first and sentence afterwards, this might be a little bit more real * * *".

The Court directed Mr. Sacher to "completely refrain from further argument along this line" (Ch.Tr. 2494). Notwithstanding the direction of the Court, Mr. Sacher shortly returned to his attack upon the Court, as follows (Ch.Tr. 2500): "Is it because the evidence is becoming too devastating for the Government that we must now be circumscribed? This is the telling stuff. Why are we stopped at this point when we proceed definitely to show that the Republican Party vote is the guide to the determination of how many jurors come from a district, and not that impartial selection which the Constitution and the statute require? That is what is at stake in this instance, your Honor, and I submit I don't want to take any more of your time if we are doing nothing to influence you; I don't want to be like the Yankee in King Arthur's Court * * *".

On February 4, 1949, during the challenge to the jury system and in the course of the direct examination of the witness Marcantonio by Mr. Isserman, the witness was asked to state how long certain low-rent housing projects had been in existence. The Court sustained an objection and told Mr. Isserman that it did not wish to hear argument from him. However, Mr. Isserman proceeded to argue and he was joined by Messrs. Gladstein, Sacher and McCabe. Repeatedly, the Court interrupted counsel stating that it did not desire to hear argument. Nevertheless, counsel continued (See Ch.Tr. 2544-2548). The Court then directed counsel to proceed with the interrogation of the witness (Ch.Tr. 2548). In the teeth of the direction, Mr. Gladstein continued (Ch.Tr. 2548-2549), as follows: "* * * since your Honor won't permit me to refer to the authorities, then I refer to a practical suggestion, and that is if instead of consuming time in arguing as to whether or not we have the right to make the simple statement for the record as to what the witness would say if he were permitted to answer the question to which the United States Attorney has objected, and which objection has been sustained — if instead of doing that we were simply allowed to follow the normal, usual routine procedure that takes place even before juries * * *"

Mr. Sacher then commenced speaking and the Court stated that it did not desire to hear him at that time (Ch.Tr. 2549). Despite this, Mr. Sacher continued (Ch. Tr. 2549-2550), as follows:

"But you have characterized my conduct as well as that of trial counsel, and I wish to deny it on the record, and I wish to say that your Honor is aware of the fact that there are 40 or 50 newspapers here, and on the threshold of Congressman Marcantonio's testimony you have taken occasion to say that his testimony is being introduced for the purpose of dragging and delaying the trial; and I say —

"The Court: Did I say that?

"Mr. Sacher: Well, you imply that very broadly. If your Honor wishes to deny it I shall be glad to have the denial. But I got the impression very distinctly that your Honor's observation was made just on the threshold of the Congressman's testimony and that it was designed to color the effect and impression to be given to it, and I do not believe, your Honor, that that is appropriate.

"The Court: If you are only trying to provoke me, Mr. Sacher, you are wasting your time."

Shortly thereafter, Mr. McCabe concluded with the following statement (Ch. Tr. 2554): "Yes, but I say that it seems to me that that is what is in your Honor's mind, and that also may very well be addressed to some one outside of this courtroom, and I think that the record, if reviewed by some other authority may indicate unusual degree of tolerance in the face of particularly annoying tactics, which I don't think we are guilty of."

On the same day, while the witness Marcantonio was still being examined by Mr. Isserman, the witness was asked if he had found many persons residing in his Congressional District who were known to him to be of average intelligence. The Court sustained an objection. However, Mr. Isserman proceeded to argue the matter. Finally, the Court sought to close argument, directing Mr. Isserman to take his exception (Ch.Tr. 2621). Nevertheless, Mr. Isserman persisted (Ch.Tr. 2621-2622), as follows:

"Mr. Isserman: I was in the middle of my objection when your Honor interrupted to misconstrue a statement that I made. I said, conditionally —

"The Court: I wish you would not say that I do that, to misconstrue.

"Mr. Isserman: It seems to me to have been misconstrued.

"The Court: That seems an impertinent thing. Mr. Isserman, that seems an impertinent thing. You are an experienced lawyer and you know better than to do that. Now, you lawyers have been at that here for three weeks, perhaps to provoke me — I don't know what the reason may be. But I do know that if you keep it up some day, perhaps now, perhaps hereafter, there will be a time of reckoning. Now, please don't do that.

"Mr. Isserman: And I would like now to object to your Honor's characterization of my comment.

"Now, the statement that I was making —

"The Court: Well, when you charge me with deliberately misconstruing something I regard that as impertinence.

"Mr. Isserman: I did not say it was deliberate, your Honor. But I said it seemed to me to be that. But, in any event, what I was saying was this: I said if this were a small community the method of proof, as indicated by the cases, would be to call the persons directly involved. Your Honor has thus far conditionally ruled that your Honor would not allow the calling of those persons who would give the direct evidence on their status."

Mr. Isserman continued his argument and the Court again interrupted to remind Mr. Isserman of the Court's previous direction as follows (Ch.Tr. 2623-2624):

"The Court: Now, Mr. Isserman —

"Mr. Isserman: Now, the reason why —

"The Court: Let me say something to you. In every judicial proceeding that I am familiar with, and I have had a pretty large experience at the bar, when the Court indicated that it didn't want any more argument on a point the lawyer quietly desisted. If he chose to except he noted his exception and went on to something else. Here, perhaps in an endeavor to wear me out, which it is gradually doing, you keep that up, and you make the argument or arguments just as you are doing now. And I say, as I have said before, that that in my judgment is not the proper conduct of an attorney. It is extremely wearing on the Court in a trial of this kind. I suppose it will wind up by bringing me down. I hope it won't. I may have the strength to go on, and I hope I shall. But I tell you — stop it.

"Mr. Isserman: I would like to take exception to your Honor's remark as an improper characterization of my conduct.

"I would like to state my — complete my objection for the record if I may.

"The Court: You insist on going ahead again, and all I can do, as I do not intend to make a rumpus about it, is to advise you again — please desist; and then, if you insist upon going on, why, you must take the consequences, whatever they may be.

"Mr. Isserman: May I state my objection for the record?

"The Court: You may not."

Instead of proceeding with the interrogation of the witness, Messrs. McCabe, Sacher and Crockett carried on the argument. The Court told Mr. McCabe that argument was unnecessary (Ch. Tr. 2625), and then Mr. Sacher, angrily shouting, offered his "observation" to the Court (Ch. Tr. 2626-2627). Mr. Crockett thereupon took up the argument and failed to desist until the Court warned him that his insistence on going on was in defiance of the Court's direction (Ch. Tr. 2632).

The jury challenge commenced on January 17, 1949. On February 11th the Court determined that counsel for the defendants had taken almost four weeks to put in evidence which could have been adduced in no more than three or four days (Ch. Tr. 3291) and accordingly the Court concluded that defense counsel had engaged in a "deliberate effort here to make a mockery of justice" (Ch. Tr. 3290). At the close of court on that day, the Court directed defense counsel to submit a statement showing what they proposed to prove in the remainder of the challenge and how they proposed to prove it (Ch. Tr. 3344-3345). The statement was submitted on February 14th (Ch. Tr. 3346) and was found insufficient (Ch. Tr. 3415). At this juncture, the Court in the exercise of its discretion as to the order of proof, refused to hear further testimony at that time on behalf of defendants in connection with their challenge to the jury system, and directed that the Government proceed with its proof. Counsel for defendants vociferously objected and, in the course of argument, Mr. Sacher, in an insolent manner, said (Ch. Tr. 3420): "Now, I must in all candor say, your Honor, that it is very difficult for us among the defense counsel to believe that the United States Attorney was caught unawares in the request or the direction which the Court made to him to proceed with his proof on an hour and half's notice —".

Other counsel proceeded to object, which led the Court to remark that the way the hearing was conducted was such as he never thought he would see in a court of justice (Ch. Tr. 3433). Thereupon, Mr. McCabe in a sarcastic tone said (Ch. Tr. 3433):

"I will agree, your Honor, on that last point; the way this case has been conducted is one which I certainly hoped that I would never see in a court of justice.

"The Court: You mean the way it has been conducted by me, I take it.

"Mr. McCabe: I mean that exactly."

The Court stated (Ch. Tr. 3434): "I have been subjected to every kind of vituperation here and you might just as well tell me how I am going to be reversed and all that. It remains to be seen what will be done by higher courts, and your telling me about that isn't going to affect my judgment. I am trying my best here to rule justly, to rule impartially, to protect the rights of these defendants despite the conduct of their counsel, and I shall continue to do that."

Mr. McCabe followed this with the statement (Ch. Tr. 3434): "I rise simply to say — to except to your Honor's characterization that anything the defendants' attorneys have done is sabotage. Sabotage there has been, but as I say I think it has been a sabotage of the entire system of justice in this court, and I say that we are the only ones who seem to be interested in that."

Thereupon, Mr. Gladstein jumped to his feet and, angrily advancing toward the bench, he said in a truculent manner (Ch. Tr. 3434-3435): "Well, now may I ask your Honor this: does your Honor really mean that the record shall indicate that it is a protection of the rights of these defendants for your Honor to say when I offer a piece of evidence, `Mr. Gladstein, that would be material, that would be relevant, that would help to prove your case, but I am not going to let you put it in evidence because I don't like the way you and your colleague lawyers have been behaving?

"The Court: Did I say that?

"Mr. Gladstein: In effect, yes, because you have absolutely rejected and you have prevented me from introducing evidence —".

On February 18, 1949, during the defendants' challenge to the jury system, Mr. McCabe diverted the course of his argument to remark (Ch. Tr. 4116-4117):

"I would like to say to your Honor that I really have come to believe that the constant repetition by your Honor at intervals which are almost as regular as the tolling of Big Ben — and I mean nothing personal in the allusion — or the eruption of Old Faithful out in Yellowstone Park, or wherever it is — these come at stated periods. I think you can pick 11.20 and 3.20 when these statements come that we are delaying; we are doing nothing; your Honor has seen nothing in the record. I say, I don't want —

"The Court: What is the point of those times, of those particular times?

"Mr. McCabe: 11.30 I think is the deadline for the afternoon papers, your Honor, and I think around 3.20 is the deadline —".

The Court (Ch. Tr. 4117): "Well, that is something I had no idea of, and I must say you have got an ingenious mind to suppose that something was said for such a purpose. I think you ought to be ashamed of yourself." See also Tr. 6980.

On February 28, 1949, during the challenge to the jury system, Mr. Gladstein asked the Court to reconsider its ruling with respect to a document which he had sought to have admitted into evidence. The Court adhered to its prior ruling and stated it did not desire to hear further argument (Ch. Tr. 4559). Mr. Gladstein refused to heed the direction of the Court, as follows (Ch. Tr. 4560-4562):

"Mr. Gladstein: But, your Honor, upon the pretext that this is a confidential document, the one that I am asking about, the one that was written by this witness, you are preventing me from showing without any question the final proof of the corruption of the system here in so far as they placed in charge of it a man who was the director of a dozen corporations, who —

"The Court: Mr. Gladstein —

"Mr. Gladstein: May I finish, Judge?

"The Court: I consider your language offensive and not fitting for an officer of this court to use when you speak of a ruling by the Court as done under a pretext, and use such other language as you used there. You must know that you are doing something that you should not do, and I direct you to desist.

"Mr. Gladstein: Your Honor, I ask that you consider the law that applies to this question because —

"The Court: I heard what you said.

"Mr. Gladstein: Do you refuse to have a memorandum of law submitted to you?

"The Court: And I consider the language offensive.

"Mr. Gladstein: Do you —

"The Court: And you know, you know that it is, but of course it may be pleasing to some of the people.

"Mr. Gladstein: Well, that is not — I have never said anything —

"The Court: But that is an additional reason why you should not do it.

"Mr. Gladstein: I have never said anything for the purposes of pleasing anyone here but for the purpose of trying to put in evidence and to persuade your Honor to do what I think the law requires.

"The Court: Well, you are not going to provoke me, so you might as well stop doing that.

"Mr. Gladstein: I want to make an offer of proof concerning this letter which, according to the witness' statement, is in this building and readily available and which, by the way, Mr. Duncan, it was called for in the subpoena that was served on you — isn't that so?

"The Court: I direct you not to make this one. It is already sufficiently evident in the case what the paper is and what your claims about it are, and mere repetition of it will only serve to use up your time that you can employ to better advantage.