# Berger v. United States (255 U.S. 22)/Dissent Day

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Day McReynolds
United States Supreme Court
255 U.S. 22
Berger et al. v. United States
No. 460. Argued: December 9, 1920. --- Decided: January 31, 1921.
Mr. Justice DAY dissenting.
As this case is to settle the practice for this and similar cases which may arise in the federal courts, and as the opinion does not consider some aspects of the record, I venture to state the reasons which impelme to reach a different conclusion than that announced by the majority.
An examination shows that statutes exist in a number of states covering the subject under consideration. These statutes vary in character, and in the requirements for establishing the bias or prejudice of the judge which may require him to abstain from sitting at the trial of a particular case. In some of them an affidavit of belief of prejudice, or that a fair trial cannot be had before a particular judge, is sufficient to disqualify him. Other statutes require supporting affidavits and the certificate of counsel, and provide for a hearing on the matter of disqualification. In some states the matter is required to be heard before another judge.
The federal statute, now under consideration, had its origin in an amendment to the Judicial Code, introduced in the House of Representatives when the adoption of the Code was under consideration. As adopted in the House, the affidavit was required to set forth the reasons for the belief that personal bias or prejudice existed against the party, or in favor of the opposite party to the suit. (See Congressional Record, vol. 46, part 3, p. 2626 et seq.)
When the bill came before the Senate, the section was amended so as to require the facts, and the reasons for the belief that bias or prejudice existed, to be set forth, and the affidavit is required to be accompanied by a certificate of counsel of record that it and the application are made in good faith. (Senate Document, No. 848, 61st Congress, 3d Session.) It is thus apparent that the section in the form in which it finally became part of the Judicial Code intended that the bias or prejudice which should disqualify a judge should be personal against the objecting party, and that it should be established by an affidavit which should set forth the reasons and facts upon which the charge of bias or prejudice was based. The evident purpose of this requirement was to require a showing of such reasons and facts as would prevent imposition upon the court, and establish the propriety of the affidavit of disqualification. 'It is not sufficient,' said the late Mr. Justice Brewer, when a member of the Supreme Court of Kansas, in City of Emporia v. Volmer, 12 Kan. 627, 'that a prima facie case only be shown, such a case as would require the sustaining of a challenge to a juror. It must be strong enough to overthrow the presumption in favor of the trial judge's integrity, and of the clearness of his percentions.'
I accept the opinion of the majority that the judge under the requirements of this statute may pass upon the sufficiency of the affidavit, subject to a review of his decision by an appellate court, and if it be sufficent to show personal bias and prejudice, the judge should not try the case. But I am unable to agree that in cases of the character now under consideration the statement of the affidavit, however unfounded, must be accepted by the judge as a sufficient reason for his disqualification, leaving the vindication of the integrity and independence of the judge to the uncertainties and inadequacy of a prosecution for perjury if it should appear that the affidavit contains known misstatements.
Notwithstanding the filing of the affidavit purporting compliance with the statute, the court has a right to use all reasonable means to protect itself from imposition. Davis et al. v. Rivers et al., 49 Iowa, 435. The personal bias or prejudice of the judge against the defendants in this case is said to be established by language imputed to the judge as his utterance concerning the attitude of the German people during the progress of the war.
The affidavit filed contained a statement of alleged language of the judge concerning a German who was 'charged' with making the statements set forth. Upon receiving the affidavit the judge at once inquired of counsel whether the language ascribed to him was not in fact uttered in connection with the disposition of the case of United States against one Weissensell in sentencing him after conviction by a jury of a violation of the Espionage Act in the same court. Counsel informed the judge that such was the fact. The judge asked counsel for Berger whether he had made any effort to ascertain the accuracy of the statement alleged to have been made by the court. Counsel replied that he had not. It would seem incredible that any judge could have made such statements concerning a defendant not yet tried in his court, in advance of trial and upon a mere charge of an offense. Counsel in open court admitted that the offending language was used in passing sentence after conviction in Weissensell's Case.
Moreover, upon the affidavit being filed, and after this admission of counsel, the district attorney offered in evidence a transcript of what took place and what was in fact said upon the sentencing of Weissensell. The judge permitted this stenographic report, sworn to by an experience stenographer, who made it, to be a true and correct report of the statements made and the proceedings had, to be put into the record, saying that the truth should be shown of record in connection with the falsity, although he was of opinion that the facts stated in the affidavit failed to establish bias or prejudice against the defendants which would disqualify him from sitting at the trial.
This stenographic report, sent up with the certificate and made part of it, and which there is no reason to believe fails to state accurately what took place, is in marked contrast with statements of the affidavit which the defendants made when seeking the disqualification of the judge. It shows, as we have already stated, that the utterances of the judge were after conviction of Weissensell, and were made when he was passing sentence. It shows that the statement of the judge concerning German-Americans was quite different from that stated in the affidavit, and referred to the bype of man who had been convicted and was before him for sentence. The judge in speaking of the convicted defendant said that he was of the type of man who branded almost the whole American-German population, and that one German-American, such as the defendant, talking such stuff, did more damage to his people than thousands of them could overcome by being good and loyal citizens; and that he, the defendant, was an illustration of the occasional American of German birth whose conduct had done so much to damn the whole 10,000,000 in America. While this language might have been more temperate, there does not appear to be in it anything fairly establishing that the judge directed his observations at the German people in general, but rather that his remarks were aimed at one convicted, as was the defendant, of violation of law.
As I understand the opinion of the court, notwithstanding the admissions of counsel, and the sworn stenographic report of what took place, the affidavit must be accepted, and if it discloses matters, which, if true, would tend to establish bias and prejudice, the same must be given effect and the judge be disqualified. It does not seem to me that this conclusion comports with the requirements of the statute that reasons and facts must be set forth for the consideration of the judge. It places the federal courts at the mercy of defendants who are willing to make affidavits as to what took place at previous trials in the court, which the knowledge of the judge, and the uncontradicted testimony of an official report may show to be untrue, and in many districts may greatly retard the trial of criminal causes.
While, as I have said, in sentencing Weissensell the judge might have been more temperate in his observations, I am unable to find that the statements of the affidavit when read in connection with the admissions of counsel, and the established facts as to what took place as gathered from the stenographic report, showed such evidence of personal bias or prejudice against the defendants as required the judge upon the mere filing of this affidavit to permit its misleading statements to be placed of record, and to proceed no further with the case.
It does not appear that the trial judge had any acquaintance with any of the defendants, only one of whom was of German birth, or that he had any such bias or prejudice against any of them as would prevent him from fairly and impartially conducting the trial. To permit an ex parte affidavit to become in effect a final adjudication of the disqualification of a judge when facts are shown, such as are here established, seems to me to be fraught with much danger to the independent discharge of duties by federal judges, and to open a door to the abuse of the privilege which is intended to be conferred by the statute in question.
In my judgment the questions propounded, in the light of the disclosures of this record, should be answered: As to the first: That the affidavit of prejudice, when read in the light of the other disclosures in the record, was insufficient to meet the requirements of the act. As to the second: That while the judge might have called upon another judge to pass upon the sufficiency of the affidavit, he had jurisdiction to pass upon it himself if he saw fit to do so. As to the third: That the mere filing of the affidavit did not require the judge to proceed no further with the trial of the defendants upon the accusation against them.
Mr. Justice PITNEY concurs in this dissent.

## Notes

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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