# Ungar v. Sarafite/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinions Douglas Goldberg
United States Supreme Court
376 U.S. 575
Ungar v. Sarafite
Argued: Feb. 24, 1964. --- Decided: March 30, 1964
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice GOLDBERG concur, dissenting.
This case is a classic example of one situation where the judge who cites a person for contempt should not preside over the contempt trial. That was the result in Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11, where the judge became 'personally embroiled' with the person he later held in contempt; and we, pursuant to our supervisory authority over the federal system, ordered a new trial before a disinterested judge. The same result is required under due process standards. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942.
I start with what Chief Justice Taft wrote in Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767:
'This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course, where acts of contempt are palpably aggravated by personal attack upon the judge, in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that, where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.'
There is in our annals a no more apt case for following that course than the present one. Here the judge who cited petitioner for contempt did become 'personally embroiled' with him and, in substance, adjudged him a malingerer and found him guilty before the trial-indeed before the citation.
Petitioner, a witness in a criminal trial in a New York court, was found guilty of contempt of court by the judge who presided at the trial, the contempt being tried after the main trial had ended. He was fined $250 and sentenced to 10 days in jail. The conviction was sustained by the Court of Appeals without an opinion. That court, however, said in its remittitur:
'* * * we point out that where the alleged contempt consists of the making of charges of wrongdoing by the trial judge himself he should, where disposition of the contempt charge can be withheld until after the trial and where it is otherwise practicable, order the contempt proceeding to be tried before a different judge.' (Italics added.) It was because the Court of Appeals thought that this contempt did not involve 'the making of charges of wrongdoing by the trial judge himself' that it upheld trial of this contempt charge by the offended judge. But this contempt charge, as I read it, did charge such wrongdoing:
'On said November 25, 1960, the respondent, as a witness in said trial committed a wilful contempt of court during the sitting of the Court, and in its immediate view and presence, in that he wilfully and in a repeated effort, obvious to the Court, to disrupt the orderly trial of the case therein, culminated his contemptuous conduct by shouting in a loud, angry, disorderly, contemptuous, and insolent tone directly tending to interrupt the proceedings of the Court and to impair the respect due to the authority of the Court:
"I am absolutely unfit to testify because of your Honor's attitude and conduct towards me. I am being coerced and intimidated and badgered. The Court is suppressing the evidence." (Italics added.)
The charge that the trial judge was 'suppressing the evidence' certainly was a charge of 'wrongdoing,' in the sense of malfeasance. The witness did indeed complain of the trial judge's 'attitude and conduct' toward him. When he said 'I am being coerced and intimidated and badgered,' he meant in the setting of those words not that the prosecutor alone was misconducting himself but that the judge was also. Any doubt is dispelled by his final statement, 'The Court is suppressing the evidence.' It is obvious that whatever else may be said of the alleged contempt it was aimed at the judge and implicated him and the judicial proprieties.
The episode was a head-on collision between the judge and a witness who said he could not understand the questions asked him and therefore could not truthfully answer. It was a head-on collision between a witness who complained he was unfit to testify and a judge who said his physical condition was faked:
'The Witness: If your Honor please, I want to recess at this point. I can't testify. I am too upset, and I am much too nervous. And I can't testify under these circumstances. I am not being a voluntary witness. I am being pressured and coerced and intimidated into testifying, and I can't testify under these circumstances.
'The Court: We shall pause for a minute or two, Mr. Witness.
'(Whereupon, there was a brief interval of silence in the courtroom.)
'The Witness: I can't testify, your Honor. I am shaking all over. And I must have a recess, I just am absolutely a bundle of nerves at this point, and I don't know what I'm doing or saying any more.
'I ask for the privilege of leaving the stand, your Honor.
'The Court: No, you will remain on the stand.
'The Witness: I can't testify, I'm sorry, your Honor. I am not in any physical or mental condition to testify.
'The Court: Mr. Witness, no one asked you anything. Nobody is questioning you. You are not testifying. We have taken a recess for about three minutes of silence, and we will take a few more minutes.
'The Witness: I would like to leave the stand, your Honor.
'The Court: No, you may not leave the stand.
'(Whereupon, there was a further brief interval of silence in the courtroom.)
'The Court: Proceed, Mr. Scotti.
'The Witness: I am not going to answer questions, your Honor. I am not going to testify in this confusion, and the Court nor anyone else will make me testify in this emotional state. I am absolutely unfit to testify because of your Honor's attitude and conduct towards me. I am being coerced and intimidated and badgered. The Court is suppressing the evidence.
'The Court: You are not only contemptuous but disorderly and insolent. (Italics added.)
'The Witness: I have asked for the privilege of leaving the stand for five minutes.
'The Court: Put your question, Mr. Scotti.
'Q. Mr. Ungar, did you tell Mr. Jack that Saturday morning that there was a conflict between your story to me and Mr. Bechtel's story to me?
'A. I can't answer any questions. I am not even concentrating on what you are saying. I can't even think clearly at this minute any more.
'The Court: Do you refuse to answer?
'The Witness: I don't know what he is talking about, Judge. I am an emotional wreck at this time. I am asking for a recess. I ask the right to get off this stand so that I can contain myself
'The Court: Do you refuse to answer the question, Mr. Ungar?
'The Witness: I said I can't answer the question, your Honor.
'The Court: Put the question, Mr. Reporter.
'Mr. Scotti: Mr. Reporter, read the question.
'(The question was read by the Court Stenographer as follows: "Q. Mr. Ungar, did you tell Mr. Jack that Saturday morning that there was a conflict between your story to me and Mr. Bechtel's story to me?')
'The Court: Let the record show that the defendant has remained silent and has not answered the question for four minutes.
'Mr. Scotti: You mean the witness, your Honor.
'The Court: What did I say?
'Mr. Scotti: The defendant.
'The Court: Obviously I meant the witness. Very well, we will advance our luncheon recess.
'Do not discuss the case, ladies and gentlemen, do not form or express any opinion as to the guilt or innocence of this defendant until the case is finally submitted to you. Since we are advancing the hour when we start our luncheon recess, we will get back here at 1:45. You may retire.
'(The jurors then left the Court room and the following took place in their absence:)
'Mr. Baker (counsel for defendant): May I be heard before the Court leaves?
'The Court: Yes.
'Mr. Baker: There has been a statement made by the witness that he is emotionally or mentally incapable of testifying. So that the record would be crystal clear, I make a request of the Court to appoint a doctor to determine whether or not there is malingering on the part of the witness or anything of the sort.
'The Court: In my judgment, this is as near as malingering could ever be determined f om my observation. (Italics added.)
'The Witness: I join in that request, if your Honor please.
'The Court: What is the ground of your application? 'Mr. Baker: The ground of my application is, if the Court please, the law presumes that when a witness testifies he is to be lucid. This witness says he is not. Any testimony he gives may be prejudicial to the rights and interests of the defendant. That's the ground of my objection, and so that the record would be clear, whether this is malingering or not, there is a mental and emotional condition presently existing in this witness so that he could not be a competent witness to testify, all of which may be to the detriment of the defendant.
'The Court: I shall reserve decision on your application and I shall direct the witness to remain in court until I decide it. The Court will take a recess until 1:45.
'(After a short recess the Court returned to the courtroom, Mr. Baker and the defendant being present, and the following took place:)
'The Court: Mr. Baker, I wanted to get both sides here. The reason I have asked Mr. Ungar to remain was because if I had made a decision, why, then, I could have acted on it. Since I haven't made a decision I see no point in having him remain here. He is entitled to take his luncheon recess the same as anybody else, but I didn't want to lose time if I could help it.
'Mr. Baker: I am glad the Court indicated the purpose of asking the witness to remain.
'The Court: That was the only purpose, because I said to you I reserve decision, and I thought I might be able to decide it and save time. Would it be a burden to give me another five minutes?
'Mr. Baker: No, your Honor.
'The Witness: Is your Honor addressing me?
'The Court: Yes.
'The Witness: No, it is not a burden, your Honor, because I was not malingering, and I have been shaking ever since this issue started.
'The Court: I just want five more minutes, and if I don't decide it by that time then we will all go to lunch.
'(A short recess was taken; the Court left the courtroom and returned.)
'The Court: Mr. Ungar, I haven't made up my mind what course of action I should take. I think you ought to take a recess until 1:45. Let us see what the situation is at that time.
'The Court: Now, Mr. Witness, before we took a luncheon recess you personally, as a witness, had asked for a recess. Do you recall that?
'The Witness: I do, your Honor.
'The Court: Now that we have had the luncheon recess and you have come back, do you still ask for a recess?
'The Witness: Well, I would like to report to the Court that I went to the hospital and received an injection, and I think that I can proceed temporarily, in addition to the pills that I have taken this morning.
'The Court: Very well.
'Mr. Scotti: May I proceed, your Honor?
'The Court: Yes.'
When counsel for the defendant again asked for a ruling on the motion to have a doctor examine petitioner the Court said:
'I thought it was obvious to everyone that when the witness resumed the stand at 1:45 P.M. after the luncheon recess, and the Court asked the witness whether his request for a recess while testifying on the stand, and before the announcement of the luncheon recess, still stood. The witness said he had been to a hospital to get a shot, and that he could.
'Mr. Scotti: That he could proceed temporarily.
'The Court: That he could proceed temporarily, and I thought that everyone then understood that the witness himself had concluded the issue by declaring that he was then able to proceed, and consequently made no formal declaration on the record.
'To avoid any possible question about that I now deny the motion.'
A financial interest in the outcome of a case, as in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, will, of course, disqualify a judge from sitting. As Chief Justice Taft said in that case:
'The mayor received for his fees and costs in the present case $12, and from such costs under the Prohibition Act for seven months he made about $100 a month, in addition to his salary. We cannot regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest. It is certainly not fair to each defendant, brought before the mayor for the careful and judicial consideration of his guilt or innocence that the prospect of such a loss by the mayor should weigh against his acquittal.' Id., at 531-532 of 273 U.S., at 444 of 47 S.Ct., 71 L.Ed. 749.
The bias here is not financial but emotional. In re Murchison, supra, involved a closely related question arising in a state case. There the judge who served as the 'one-man grand jury' also had doubts about the way in which a witness testified before him. He charged him with contempt for refusing to answer. We reversed the conviction, saying,
'It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings. A single 'judge-grand jury' is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal. Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.' 349 U.S., at 137, 75 S.Ct., at 625, 99 L.Ed. 942.
The present case is a stronger case for reversal than In re Murchison. There the bias of the judge was inferred. Here it is apparent on the face of the record. For when the witness said 'The Court is suppressing the evidence,' the judge replied, 'You are not only contemptuous but disorderly and insolent.' (Italics added.) Moreover, while petitioner was still on the stand as a witness in the main case, the judge condemned him as a malingerer and refused to order a medical examination. Thus, long before the contempt trial-long before the contempt charge had been filed-the judge, who later sentenced the witness for contempt, had concluded and stated in so many words-that the witness was 'contemptuous.' It is a travesty on American justice to allow a judge who has announced his decision on the issue of guilt prior to the trial to sit in judgment at the trial.
Judges are human; and judges caught up in an altercation with a witness do not have the objectivity to give that person a fair trial. In the present case, the basic issue was whether the witness was sick or whether he was faking. The judge, who found him guilty for an outburst that might have been excused coming from the lips of a sick man, had announced his decision when the witness asked to be excused. He then said that the witness was a malingerer; and he refused to call a doctor.
This aspect of the case emphasizes a second reason why a different judge should have tried the contempt charge. The judge who accused the witness of malingering was not a medical expert and his conclusion that the witness was faking, though admissible as evidence, would not be conclusive. This crucial fact was one that the judge should not be left to decide on the basis that he saw the witness and therefore could be depended upon to determine that he was not ill, as, contrariwise, he could have been depended upon to know that the accused had openly resisted a marshal, as in Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405.
A man going on trial before that judge is denied a basic constitutional right-the right to examine and cross-examine. As we said in In re Murchison, supra, if the emotionally involved trial judge tries the contempt 'the result would be either that the defendant must be deprived of examining or cross-examining him or else there would b the spectacle of the trial judge presenting testimony upon which he must finally pass in determining the guilt or innocence of the defendant. In either event the State would have the benefit of the judge's personal knowledge while the accused would be denied an effective opportunity to cross-examine. The right of a defendant to examine and cross-examine witnesses is too essential to a fair trial to have that right jeopardized in such way.' 349 U.S., at 139, 75 S.Ct., at 626, 99 L.Ed. 942.
An impartial judge, not caught up in the cross-currents of emotions enveloping the contempt charge, is the only one who can protect all rights and determine whether a contempt was committed or whether the case is either one of judicial nerves on edge or of judicial tyranny.

## Notes

* ↑ This is not a case of summary contempt during the course of a trial, where 'immediate punishment is essential to prevent 'demoralization of the court's authority * * * before the public." In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 509, 92 L.Ed. 682.
* ↑ Unlike Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, where the trial judge at the end of the trial summarily found counsel participating in the trial guilty of contempt, the judge in the instant case, following the procedure recommended by Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767, issued a rule to show cause why the witness should not be held in contempt and held a hearing on that citation.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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