# Sacher v. United States (343 U.S. 1)/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Frankfurter Douglas
United States Supreme Court
343 U.S. 1
Sacher v. United States
Argued: Jan. 9, 1952. --- Decided: March 10, 1952
Mr. Justice BLACK, dissenting.
I would reverse these convictions because of my belief that (1) the Judge should not have passed on the contempt charges he preferred; (2) whatever judge considered the charges, guilt should not have been summarily decided as it was-without notice, without a hearing and without an opportunity for petitioners to defend themselves; (3) petitioners were constitutionally entitled to have their guilt or innocence of criminal contempt decided by a jury.
After a nine months' trial of leaders of the Communist Party a jury brought in a verdict of guilty and was discharged. Immediately, presiding Judge Medina asked all the defendants' lawyers to stand up, then read them a very minor part of a lengthy 'contempt certificate' in which they were alleged to have committed many acts of contempt at various times during the protracted trial. Without affording any of them a chance to say a word before he acted, the presiding Judge held all of them guilty of contempt and sentenced each one to prison.
First. I think it was a grave error for the Judge to pass on the charges he brought. Reasons why he should not have doen so have been forcefully presented by Mr. Justice FRANKFURTER here and by Judge Charles Clark in the Court of Appeals. Their arguments that Judge Medina should not have made these adjudications are vividly buttressed by the collection of trial episodes placed in the appendix to Mr. Justice FRANKFURTER'S opinion. 72 S.Ct. 471. These episodes bespeak an attitude of distrust of the lawyers and, I regret to add, of hostility to them generally deemed inconsistent with that complete impartiality the process of judging demands. Facts that appear of special importance to me in considering what were the Judge's personal feelings towards those he convicted are these:
The presiding Judge was convinced that the lawyers had deliberately and calculatingly badgered and insulted him throughout the long months of trial. Among these insults, so the Judge believed and declared, were insolent, sarcastic, impudent and disrespectful charges that he angled for newspaper headlines; connived with the United States Attorney; entertained racial prejudice; judicially acted with 'bias, prejudice, corruption, and partiality.' He found and repeatedly declared that these lawyers were acting in concerted agreement in an attempt to create confusion, provoke incidents and break down his health. As the trial progressed, the record shows that the Judge expressed stronger and stronger fears that the alleged conspiracy to destroy his health was about to succeed. This belief may explain his sharp and somewhat heated repartee in his frequent controversies with counsel. But whatever the provocation, the record shows a constantly growing resentment of the Judge against the lawyers.
The Judge's distrust of and disrespect for the lawyers clearly appear from his frequent charges that their statements were false and unreliable. These repeated accusations, as particularly shown by the following colloquy, impress me as showing such bitter hostility to the lawyers that the accuser should be held disqualified to try them:
'Mr. Sacher: I am offended on these constant aspersions on the veracity of representations that I make. I am an officer of this court and I resent these-
'The Court: There was an instance when you deliberately lied to me when they were passing these press releases. You said that they were not and you were caught red-handed.
'Mr. Sacher: That is the most offensive charge that can be made against an officer of the court. * * * What has a lawyer got but his honor.
'The Court: * * * You were caught red-handed.
'Mr. Sacher: That is the most detestable thing I ever heard from a judge. I resent that and I urge that it be expunged from the record. * * * I will defend my honor as a member of the bar against your honor or anybody else. * * * I think an idiot resorts to lying. I don't have to do it.
'The Court: You did it.
'We better let these little amenities go. I can see from your belligerent manner if you thought you could, you might physically come up to the bench and physically attack me. I know your manner and it doesn't frighten me in the slightest degree.'
Liar ordinarily is a fighting word spoken in anger to express bitter personal hostility against another. I can think of no other reason for its use here, particularly since the Judge's charge was baseless. And the Judge's personal feeling towards these lawyers, Sacher in particular, is further indicated by an occurrence immediately after they had been sentenced. Sacher asked and was granted the privilege of making a brief statement. This statement was relevant and dignified. Nevertheless the Judge interrupted him and used this language to a lawyer he had just abruptly and summarily sentenced to prison: 'You continue in the same brazen manner that you used throughout the whole trial * * * despite all kinds of warnings, throughout the case, you continue with the same old mealy-mouth way of putting it which I have been listening to throughout the case.' (Emphasis supplied.) Candor compels me to say that in this episode the decorum and dignity of the lawyer who had just been sentenced to prison loses nothing by comparison with others.
Certainly repeatedly calling a lawyer a liar marks a drastic deviation from the desirable judicial standard. A judge who does this should no more be permitted to try the lawyer he accuses than a judge should be permitted to try his own case. Cf. Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. No man should be forced to trial before a judge who has previously publicly attacked his personal honor and integrity. The risk to impartial justice is too great.
Second. Before sentence and conviction these petitioners were accorded no chance at all to defend themselves. They were not even afforded on opportunity to challenge the sufficiency or the accuracy of the charges. Their sentences were read to them but the full charges were not. I cannot reconcile this summary blasting of legal careers with a fair system of justice. Such a procedure constitutes an overhanging menace to the security of every courtroom advocate in America. The menace is most ominous for lawyers who are obscure, unpopular or defenders of unpopular persons or unorthodox causes.
Conviction without trial is not only inherently unfair in the first court, but the unfairness is carried up to the appellate level. This case proves that. A fair review requires scrutiny of 13,000 pages of evidence most of which is irrelevant. For the contempt certificate states: '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.' Such a record obscured the lawyer's trial conduct in a maze of evidence that has nothing to do with their own guilt or innocence. It is not surprising that this Court shrinks from reading such a record; it refuses to do so. No assertion is made that the Court of Appeals waded through it. Consequently there is every indication that the Court of Appeals appraised the factual accuracy of Judge Medina's charges on a basis deemed by him as 'inadequate' because presenting only 'a partial view' of the numerous court-lawyer controversies. Such an 'inadequate' basis of review is to be expected since no hearing was held which could have framed concrete issues and focused attention on evidence relevant to them.
There are other manifest elements of unfairness in a system which calls on appellate courts to judge the trial conduct of lawyers accused of contempt on the basis of all evidence introduced against their clients in a prior criminal case. This unfairness is particularly emphasized here. The root of Judge Medina's charges was that these lawyers followed a concerted course deliberately designed to bring the whole judicial system into public contempt and disgrace. Their clients were Communist leaders. Much of the 13,000 pages of evidence was offered to show that they planned to subvert and destroy all governmental institutions, including courts. Unless we are to depart from high traditions of the bar, evil purposes of their clients could not be imputed to these lawyers whose duty it was to represent them with fidelity and zeal. Yet from the very parts of the record which Judge Medina specified, it is difficult to escape the impression that his inferences against the lawyers were colored, however unconsciously, by his natural abhorrence for the unpatriotic and treasonable designs attributed to their Communist leader clients. It appears to me that if there have ever been, or can ever be, cases in which lawyers are entitled to a full hearing before their liberty is forfeited and their professional hopes are blighted, these are such cases.
For reasons stated above and for reasons stated in the dissent of Mr. Justice FRANKFURTER and the dissent of Judge Charles Clark, I think these cases should be reversed because Judge Medina denied petitioners a hearing. But I would reverse on the further ground that petitioners are entitled to all the constitutional safeguards provided to protect persons charged with crime, including a trial by jury.
Third. Art. III, § 2 of the Constitution provides that 'The Trial of all Crimes * * * shall be by Jury.' Not satisfied with this single protection for jury trial, the Founders reemphasized the guaranty by declaring in the Sixth Amendment that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.' And the Fifth Amendment provides that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.' These contempt proceedings are 'criminal prosecutions' brought to avenge an alleged public wrong. Petitioners were imprisoned for terms up to six months, but these terms could have been longer. The Government's position in United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, was that the amount of punishment for the crime of contempt can be fixed at a judge's discretion, with no limit but the Eighth Amendment's prohibition against cruel and unusual punishment. Certainly, petitioners have been sentenced for crimes. Consequently these lawyers have been wrongfully deprived of the jury benefits of the foregoing constitutional provisions unless they are inapplicable to the crime of contempt.
There are undoubtedly sayings in some past opinions of this Court broad enough to justify what was done here. Indeed judges and perhaps lawyers pretty generally subscribe to the doctrine that judicial institutions would be imperiled if judges were without power summarily to convict and punish for courtroom offenses. Our recent decisions, however, have expressed more cautious views about the judicial authority to punish for contempt. Returning to the early views of this Court, we have marked the limits of that authority as being 'the least possible power adequate to the end proposed.' In re Oliver, 333 U.S. 257, 274, 68 S.Ct. 499, 508, 92 L.Ed. 682; In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30. The 'end proposed' is 'power adequate' in the court to preserve order and decorum and to compel obedience to valid court orders. To achieve these ends-decorum and obedience to orders-courts must have power to act immediately, and upon this need the power of contempt rests. Concurring opinion, United States v. United Mine Workers of America, supra, 330 U.S. at 331-332, 67 S.Ct. at page 714, 91 L.Ed. 884. Measured by this test, as Judge Charles Clark's dissenting opinion pointed out, there was no necessity here for Judge Medina's summary action, because the trial was over and the danger of obstructing it was passed. For the same reason there was no longer need, so far as that trial was concerned, to try petitioners for their courtroom conduct without benefit of the Bill of Rights procedural safeguards.
A concurring judge in the Court of Appeals feared that it might bring about 'demoralization of the court's authority' should any one other than Judge Medina try the case. The reason given was: 'For instance, in all likelihood, at a trial of the lawyers, Sacher would introduce the testimony of himself and others in an effort to prove that he was not 'angrily shouting,' as charged in Specification VII, and did not speak 'in an insolent manner,' as charged in Specification VIII; Gladstein would similarly seek to prove there he did not 'angrily' advance 'toward the bench' or make remarks in a 'truculent manner,' as charged in Specification VIII, and did not speak to the judge 'in a sarcastic and impertinent manner's as charged in Specification XI, etc., etc.' 182 F.2d 416, 461. What would be wrong with this? Are defendants accused by judges of being offensive to them to be conclusively presumed guilty on the theory that judges' observations and inferences must be accepted as infallible? There is always a possibility that a judge may be honestly mistaken. Unfortunately history and the existence of our Bill of Rights indicate that judicial errors may be from worse causes.
The historic power of summary contempt grew out of the need for judicial enforcement of order and decorum in the courtroom and to compel obedience to court orders. I believe the idea of judges having unrestricted power to by-pass the Bill of Rights in relation to criminal trials and punishments is an illegitimate offspring of this historic coercive contempt power. It has been said that such a 'summary process of the Star Chamber slipped into the common law courts,' and that the alleged ancient history to support its existence is 'fiction.' With the specific reservation that I think summary contempt proceedings may be employed solely to enforce obedience and order, and not to impose unconditional criminal punishment, I agree with this statement of Mr. Justice Holmes: 'I would go as far as any man in favor of the sharpest and most summary enforcement of order in court and obedience to decrees, but when there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 425-426, 38 S.Ct. 560, 566, 62 L.Ed. 1186.
I believe these petitioners were entitled to a jury trial. I believe a jury is all the more necessary to obtain a fair trial when the alleged offense relates to conduct that has personally affronted a judge. The majority here and the majority below appear to have affirmed these convictions on the assumption that appellate review so fully guarantees a fair trial that it is an adequate substitute for trial by jury. While I agree that the power of lawyer-judges to set aside convictions deemed prejudicial or erroneous is one vital safeguard of liberty, I cannot agree that it affords the full measure of security which the Constitution has provided against unjust convictions. Preference for trial by a jury of laymen over trial by lawyer-judges lies behind the constitutional guarantee of trial by jury. I am among those who still believe in trial by jury as one of the indispensable safeguards of liberty.

## Notes

* ↑ The defendant Dennis, who had acted as his own lawyer, is included in this group.
* ↑ While the full text of the colloquy is pertinent, all of it is not repeated here as it is set out at pp. 487, 488 of 72 S.Ct., of the appendix to Mr. Justice FRANKFURTER'S opinion.
* ↑ The Court of Appeals held that the record failed to sustain the accusations that Sacher had spoken falsely about the press releases. Specification XV based on that charge was reversed.
* ↑ The parts of Sacher's statement immediately preceding the court's interruption were as follows:
* ↑ I do not think the convictions of these lawyers for contempt should be affirmed on the theory that such has already been expressly or impliedly done by the 'differently composed Court of Appeals' that affirmed conviction of the Communist leaders. That 'differently composed' court merely held that no conduct of the trial judge called for reversing the convictions of the Communist leaders. I think that affirmance does not support an inference that the 'differently composed' court would also have sustained a judgment of contempt against the lawyers. Moreover while this 'differently composed' court severely condemned the lawyers' conduct, it apparently felt constrained to imply that the trial judge 'did not conduct himself with the imperturbability of a Rhadamanthus * * *.' 183 F.2d 226.
* ↑ New Orleans v. The Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354; Gompers v. United States, 233 U.S. 604, 610, 611, 34 S.Ct. 693, 695, 58 L.Ed. 1115; Michaelson v. United States, 266 U.S. 42, 66-67, 45 S.Ct. 18, 20, 69 L.Ed. 162; Pendergast v. United States, 317 U.S. 412. 416-418, 63 S.Ct. 268, 270, 87 L.Ed. 368; but cf. Myers v. United States, 264 U.S. 95, 103, 44 S.Ct. 272, 273, 68 L.Ed. 577.
* ↑ Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts, 37 Harv.L.Rev. 1010, 1047. See also Nelles & King, Contempt by Publications in the United States, 28 Col.L.Rev. 401; Fox, History of Contempt of Court (1927).
* ↑ During the parliamentary discussion of Mr. Fox' libel bill, which sought to preserve trial by jury, it was called to the Parliament's attention that Mr. Justice Buller, while trying the Dean of St. Asaph at Shrewsbury, had declared the 'rights of appeal' to be the 'dearest birth-rights' of an Englishman: 'The marquis (of Lansdowne) ridiculed the declaration, that a right of appeal in arrest of judgment, and of moving for a writ of error, was one of the dearest birth-rights of Englishmen, asserting that it was neither more nor less than the being turned over from one set of lawyers to another, and from that other to a third. In fact, it was to be turned over from the judge who tried the cause, to himself and three others, in a second place; and from them to themselves again, mixed with a few more judges, in a third place!' Hansard, Parliamentary History of England, Vol. 29, p. 1419.
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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