Earl Warren: -- versus Hon. Joseph A. Sarafite, Judge.
Osmond K. Fraenkel: May I please the Court.
Earl Warren: Mr. –
Osmond K. Fraenkel: Mr. Fraenkel.
Earl Warren: -- Redfield.
Osmond K. Fraenkel: No Mr. Fraenkel.
Earl Warren: Oh, Mr. Fraenkel.
Osmond K. Fraenkel: Yes sir.
Earl Warren: Of course Fraenkel.
Osmond K. Fraenkel: Mr. Redfield is going to deal with the legal questions primarily and I will relate the circumstances under which the case arose. This is an appeal from a summary contempt conviction of a witness at a criminal trial in the city of New York. The conviction took place sometime after the conclusion of the trial. The trial itself was that of former Borough President of Manhattan, Hulan Jack. Mr. Jack was charged with conspiracy and this witness, appellant here, was named as a coconspirator, but was not indicted. The charge was generally that Mr. Jack had received favors from persons who might have benefited in connection with official duties performed by Mr. Jack. One of those charges involved this appellant although Mr. Jack was ultimately acquitted of that particular charge. Appellant, a lawyer and engaged in real estate business ventures had for many years been an intimate personal friend of Mr. Jack's and a close political associate. He was convinced of Mr. Jack's innocence. He was called by the prosecution after having testified at length before the grand jury and during the first trial, because the first trial resulted in a disagreement and this occurrence which is the subject of this appeal was at the second trial, during the first trial differences arose between Mr. Ungar as a witness and the prosecuting attorney Mr. Scotti and the Judge and I might note parenthetically that Mr. Scotti and the Judge had been close associates in the district attorney's office before the judge ascended the bench and as a result Mr. Ungar was treated as a hostile witness. It also developed during the first trial that the defendant's attorney Mr. Baker --
Earl Warren: May I ask what (Inaudible) eye witness?
Osmond K. Fraenkel: He claims he was not, the Judge ruled that he was --
Earl Warren: And he refused -- and he refused to testify that actually he was given immunity?
Osmond K. Fraenkel: He had originally asked for immunity. He then sought to withdraw that immunity unsuccessfully. In any case --
Earl Warren: That wouldn't indicate that he was very friendly, would it?
Osmond K. Fraenkel: No and of course he was, he admittedly believed that the defendant was innocent. Difficulties arose --
Earl Warren: Which in itself -- which in itself might name that he was a defendant witness? I am just asking about your statement that they treated him as a hostile witness.
Osmond K. Fraenkel: Well, I am taking from the record of course there is a statement to that effect of whether in fact he was or was not, may not really be relevant to this case now before Your Honors, difficulties arose. During the interval between the first and the second trials, Mr. Ungar addressed first a letter and then a motion to the Trial Judge who was the same at both trials asking that he be treated as the court's witness because he said he had experienced difficulty during the first trial in giving his understanding of the fact and felt that he was whipsawed between the prosecutor and the defense attorney, the defense attorney apparently taking to position that Mr. Jack's difficulties stemmed from his connection with appellant. That request was turned down and the second trial commenced and Mr. Ungar was a witness for several days and further difficulties –
Speaker: (Inaudible)
Osmond K. Fraenkel: The prosecution, this is all -- he was called both times only by the prosecution. Certain other difficulties arose primarily because Mr. Ungar wanted to give fuller versions of conversations which had occurred between him and Mr. Jack that apparently the prosecutor was interested in developing. It reached a point on the third or fourth day of this testimony when Mr. Ungar became emotionally disturbed and asked the court to be allowed to step down for a brief time because he said he was so upset that he couldn't continue to give testimony. That request was repeated two or three times and each time denied and then came the outburst which is the basis of the contempt charge, which I suppose must be stated verbatim and again asking to be excused, the Judge having denied it before, Mr. Ungar continued and in the disturbed state to say, I am absolutely unfit to testify because of Your Honor's attitude and conduct toward me. I'm being coerced and intimated and badgered, the court is suppressing the evidence and then followed a very, very unusual situation, the defense attorney –
Speaker: (Inaudible)
Osmond K. Fraenkel: Disagreement. The defense attorney then suggested that perhaps Mr. Ungar should be examined by a physician to find out whether he was emotionally upset or whether he was malingering and the court volunteered the statement that this was malingering of the worst kind I have ever seen. And then the court retired to consider whether or not to act on the defense attorney's application and the jury was excused and Mr. Ungar remained seated in the witness stand for some little time. The Judge came back and said he hadn't been able to make up his mind and then a few more minutes elapsed and finally the Judge said, well we might as well all go to lunch without ruling on the request. During the lunch period Mr. Ungar went to nearby hospital and received medication. He returned at the end of the lunch period. The Judge then announced after being reminded by the defense attorney that his application had not been passed on and it was denied. Mr. Ungar continued to testify for a day or more and there was no further difficulty or incident.
Speaker: (Inaudible)
Osmond K. Fraenkel: Yes, the Judge asked him whether he was ready to proceed and Mr. Ungar said yes, having gone to the hospital and receiving medication, he now felt composed and was able to --
Speaker: (Inaudible)
Osmond K. Fraenkel: Yes, that's right. Now I wish to also point out that the Judge had on one or two occasions had monished Mr. Ungar and that at the end of the trial he told Mr. Ungar to stay around. The trial ended late in November and on the Thursday following around 4:30 in the afternoon Mr. Ungar was served with fairly luminous papers requiring his appearance before the Judge on the following Tuesday morning charging him with contempt, reciting a number of incidents which had occurred during the trial, but specifying primarily the matter to which I alluded and which I quoted. Mr. Ungar appeared in court on Tuesday with the clerk of a lawyer whom he had in the meantime retained, but who was however engaged in a trial in another part of the court, asking for a brief adjournment so that this lawyer could prepare and represent him. The Judge required that the lawyer himself appear and the lawyer was able to arrange with the Judge in the other part for a short adjournment of an hour or two of his case and came before the respondent here asking for an adjournment so that he could prepare. It should be --
Arthur J. Goldberg: There is no dispute (Inaudible)
Osmond K. Fraenkel: Oh no there is no dispute about that at all, no question about that. I was also going to note because it is in the record that the judge made some emphasis upon it, that at the time when Mr. Ungar retained this lawyer, the lawyer told him that he was engaged and that he would hope to get an adjournment so that he could represent Mr. Ungar. I should also add that in addition to this being over a weekend, the Monday preceding the Tuesday appearance in court was the day of one of the heaviest snowfalls of recent years when New York was practically incapacitated, the courts closed, the schools closed, nothing happened. The judge after listening to the lawyer for some few moments, several pages of the record in any case, denied the request. The judge then proceeded to introduce into evidence stenographic minutes, various things that had occurred, enquired of respondent whether he wanted to go on and respondent said that he felt helpless and did however make some comments upon the situation including an apology and protested against the judge proceeding in the manner in which he had proceeded, contempt adjudication.
Potter Stewart: Apology, who apologized to whom and about what?
Osmond K. Fraenkel: Mr. Ungar said to the Court, that he had not intended to commit any contempt, that he was such in emotional state that he didn't know what he was doing and he said -- well I think it was the lawyer who apologized on his behalf. I don't find at the moment.
Speaker: (Inaudible)
Osmond K. Fraenkel: Yeah I should, I thought I brought it. There is a word apology in there somewhere. Yes on page 107, the Court referred to -- no oh here it is. Well, the Court evidently thought that the statement on page 104, I'm satisfied in my own mind that I never intended to commit any contempt of Court. I believe I can satisfy and prove that there was never any intent on my part to do any act which was contemptuous, disorderly or insolent and the Court evidently took that to be an apology, because at page 107 in the last paragraph, the Court says as to an apology, I should say so forth, any court should acknowledge it and so on. In any case thereupon under New York law, the apparently appropriate way to review a conviction of this sort is not by an appeal, but by what we call there an Article 78 proceeding which is an amalgam of the former mandamus certiorari and probation procedures, because the appeal that was taken is dismissed and the other was referred on it's merits and affirmed, then it ultimately went to the Court of Appeals in New York, the appellate division having affirmed without any opinion and the Court of Appeals likewise affirmed without any opinion, but in it's order of affordance made the rather remarkable statement. However, we point out, that's at 156, that where the alleged contempt consists of the making of charges of wrong doing 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 or to the contempt proceeding to be tried before a different judge.
Speaker: Is there a request for that?
Osmond K. Fraenkel: There was a request -- there was an objection originally to the judge having heard the matter himself, yes. Now when the usual formal application was made to the New York Court of Appeals to amend its remittitur so as to set forth the constitutional -- Federal Constitutional questions had been raised, there having been no opinion from the Court discussing these and in that order amending the remittitur, three points were set forth as having been raised under the Due Process Clause of the Fourteenth Amendment, the Court's refusal to grant an adjournment, the Court's in vocation of summary power and proceeding before the judge who made the charge.
Speaker: (Inaudible)
Osmond K. Fraenkel: No. That's not present in this case. And then again the Court did something quite unusual in this order amending the remittitur, the Court perhaps seeking to undercut the decisions of this Court in cases like (Inaudible) went on to say the Court of Appeals held that appellant's contemptuous remarks were not a personal attack upon the trial judge and that in no way was it -- of any -- of course the formal thing that it was no way a denial of any constitutional rights. Now that statement of course of the Court of Appeals interpreting the remarks we submit is not conclusive upon this Court, because that is entangled with the constitutional question as to the propriety of the matter proceeding before the same judge.
Speaker: Where is that?
Osmond K. Fraenkel: I was quoting from page 165 of the record.
Speaker: 160?
Osmond K. Fraenkel: 165 the very first few lines of that page, which is a part of the order of the New York Court of Appeals amending it's remittitur and setting forth that federal constitutional questions had been raised, passed upon and the claim that federal constitutional right denied. So that is the posture of the case as it came to this Court. Now we contend three things. First an attack upon the statute permitting summary proceedings where the circumstances do not require it, particularly where the proceedings occur after the expiration of the trial itself, so that the trial judge felt no necessity for immediate action because of the character of the contempt charge. Obviously there are situations in which the contempt charge is such a character that immediate action must be taken as if a person starts a disturbance, a physical disturbance in a courtroom and can be physically removed and immediately punished and various other circumstances of that sort which are not involved in this case. Now, that point will be elaborated by Mr. Redfield.
Speaker: (Inaudible) was a lawyer?
Osmond K. Fraenkel: Yes, he was a lawyer, but primarily at that time engaged in real estate, I believe. He had been a lawyer since 1935. The second question then is a propriety of the matter coming up before the same judge which requires a review of the relationship between the parties, the extent to which hostility had arisen during the course of the first, as well as the second trial between the trial judge and the witness and the extent to which the specific remarks constituted a reflection upon the trial judge and whether or not therefore there is a substantial basis for the rather unusual departure by the Court of Appeals from it's ordinary practice of merely certifying questions and indicating this judgment about the character of the remarks, and Mr. Redfield will also deal with that subject. Finally, there is the point which I want to stress for a moment a little further that in the light of all of these circumstances it was a denial of due process to refuse an adjournment. Here was no situation of urgency of any kind whatever. The trial had ended several weeks before the hearing. The judge himself had taken rather the district attorney's office I believe at the Judge's request had taken some eight days to prepare the charges which were fairly voluminous. The papers were served on the eve of a weekend with little time for preparation. The difficulties of obtaining counsel in such a situation are of course well known. Lawyers dislike appearing against Judges and there was no reason as obtainable to anybody, why when this request for adjournment was made it could not have been granted. Nothing would have been interfered with except perhaps the Judge's own feelings, which merely underlined the impropriety of that particular Judge, sitting there and passing on the matter. It isn't as though this were a situation where there had been long delay. It isn't even a situation where there were any witnesses that had to be called who would not be available. There was nothing, just absolutely nothing in the situation as it then existed that would justify a reasonable request for an adjournment. There wasn't even an opportunity under the particular circumstances here existing for appellant to have filed a written answer to this rather long petition which was served on him and no written -- and so why -- isn't the record inconsequence? There was no opportunity, really -- real opportunity for him to consult with counsel. He wanted an opportunity to explore the situation which existed and possibility of medical evidence to support his contention with regard to his disturbed state of mind on that occasion. In any event one can only, it seems to me characterize, the Judge's refusal to grant this request for adjournment as a fully arbitrary judicial act, and therefore, a clear denial of due process because basic, aside from all other considerations which have developed in the law of due process, basic is the right of a person to have a reasonable opportunity to defend himself and we submit that no such opportunity was granted here and that -- therefore regardless of all other considerations, this conviction cannot be supported. Mr. Redfield's will deal –
John M. Harlan: (Inaudible) inference in the record that before the end of the trial, Ungar knew that he was going to be proceeded against for contempt?
Osmond K. Fraenkel: Well, he had been warned, but after all the things that are said in the heat of trial are not always carried out and Ungar may very well have felt, particularly in view of the fact that the last few days of the – his appearance as a witness passed without any incident, any difficulty of any kind that the Judge would let the matter rest. He apparently felt that way. He had sensed so in the papers, which were here in the record. Now whether he was justified in that whether a less, a person of perhaps less optimistic frame of mind might not have done something immediately, I submit is not the issue here because even if Mr. Ungar had known that he was going to be charged, he couldn't know until the papers were served on him exactly with what he was going to be charged because there had been two or three earlier instances in which the Judge had objected to Mr. Ungar's manner of testifying and issued some sort of veiled warning even then. And in any case until he got the papers he was not really in a position, I would suppose, to consult a lawyer to find out how you should handle it. He by that time I suspect must have realized that like many lawyers he made a bad witness, those lawyers do the tradition is and this has been my own personal experience and he felt when he saw these papers that he needed help. But even if he had -- should have -- sought help sooner, I still say that the circumstances were such as not to justify the denial of an adjournment. This was again repeated, it wasn't the situation where a host of people had been called jurors, and witnesses and everybody prepared to go into a long trial, so that an adjournment would inconvenience people. Nobody would have been inconvenienced by this adjournment not even the trial Judge himself really if he was going ahead with his other business and set this down for a week later and gone ahead under the proper procedures. So I submit that under all of these circumstances this conviction does not --
Potter Stewart: Mr. Fraenkel, the papers to which you referred, so that's the order to show cause, which appears at the record beginning at Page 67?
Osmond K. Fraenkel: Yes.
Potter Stewart: And goes on into about Page 91 I think.
Osmond K. Fraenkel: That's right.
Potter Stewart: And what that basically consist of is a excerption of Mr. Ungar's own testimony at the trial, is it not?
Osmond K. Fraenkel: That's true.
Potter Stewart: With which of course he was perfectly familiar?
Osmond K. Fraenkel: Well, [Attempt to Laughter] you are familiar, one is familiar with the testimony that one has given, but I have been a witness and I have been a speaker and one is sometimes amazed at what one sees on the --
Potter Stewart: I quite agree but then --
Osmond K. Fraenkel: -- (Inaudible)
Potter Stewart: This was it, it was just portion of the transcript of his testimony.
Osmond K. Fraenkel: Of course he was generally familiar, but even if he had been more specifically familiarized he will say that's no justification for denying a reasonable request for an adjournment when no one could suffer any harm by that request.
Potter Stewart: Well now yes, but now what would have been accomplished if nobody could have suffered any harm, what good would have been accomplished during the adjournment?
Osmond K. Fraenkel: Well one never knows what good would be accomplished from the advice of a lawyer to a client, that's one of the things that this Court has in recent years come to realize I believe more and more. After all the whole philosophy of the Gideon's case is just that.
Potter Stewart: Well then --
Osmond K. Fraenkel: One doesn't know --
Potter Stewart: Is this a Gideon's case now Mr. Fraenkel?
Osmond K. Fraenkel: Well it's not a Gideon case, but it's nevertheless a case in which a lawyer could have been of help in formulating, first a specific answer and second if necessary producing medical testimony, third in advising the defendant himself, what attitude he should take. I think that this is a contempt charge particularly where a lawyer is involved is a serious enough matter to require the advice of counsel.
Potter Stewart: Well he had the advice of counsel, did he not?
Osmond K. Fraenkel: No he didn't really have the advice of counsel because he retained counsel over the telephone under circumstances where discussion was difficult and counsel was already engaged in another case and his mind presumably was more involved with that case, which he was in the process of trying, it was a difficult situation and I don't think that it can fairly be said that he had the advice of counsel. He certainly didn't feel that he had and --
Byron R. White: What if counsel hadn't been engaged in another trial?
Osmond K. Fraenkel: Counsel hadn't been engaged in another trail?
Byron R. White: Would you suggest the schedule is too rapid anyway?
Osmond K. Fraenkel: Yes I think counsel would then have asked for a shorter adjournment a day or two so that he could prepare an answer. After all this was a --
Byron R. White: So is this really, it's a really a (Inaudible) that he asked this particular lawyer?
Osmond K. Fraenkel: Well that was unfortunate but one can't always get the lawyer that one wants and it is true that –
Byron R. White: And that's always true.
Osmond K. Fraenkel: Yeah, well sure but it is -- this is of course a certain curious combination of circumstances.
Byron R. White: Don't you really have to argue that no matter who, who your client had called, whatever is available in that that the time was too short?
Osmond K. Fraenkel: Yes I should say -- I say that when a person involved in a serious charge asks for a reasonable adjournment which would inconvenience nobody really, he is entitled to it.
Byron R. White: How much notice did you have?
Osmond K. Fraenkel: It was served on Thursday afternoon at about 4:30 in the afternoon and it was returnable Tuesday.
Byron R. White: Although it was --
Osmond K. Fraenkel: And it so happened that Monday was practically a day that didn't count.
Byron R. White: Although he knew, although he knew before that he is going to be tried for something?
Osmond K. Fraenkel: No, no that you might be, you didn't know that you were. All that the Judge said was, he issued one or two warnings, but Judges do that frequently and do nothing about it. At the end of the trial he had said the appellant that he should be around, should be available. So that appellant undoubtedly had some reason to suspect that he might be charged, but he couldn't know exactly what he was going to be charged with whether he was going to be confined to one thing or more things and again I say that it doesn't seem to me to make the difference. The question is --
John M. Harlan: (Inaudible) by the appellant division and by the Court of Appeals wouldn't it?
Osmond K. Fraenkel: Well, the Court of Appeals doesn't review questions of discretion of course. The Court of Appeals reviewed the contention whether there was a denial of due process, no doubt about that. Both of the courts reviewed it, but we again with all respect to those courts, this Court has frequently disregarded the action of State Courts no matter how unanimous and I don't think that is the issue here. I think the issue is whether in a serious matter, a person who comes into court and says I'd like a short adjournment so that I can really have the benefit of counsel shouldn't get it.
John M. Harlan: (Inaudible)
Osmond K. Fraenkel: And if --
John M. Harlan: -- automatic rule of federal due process.
Osmond K. Fraenkel: No there is nothing automatic Mr. Justice. I don't believe that light this anything automatic --
John M. Harlan: Well then --
Osmond K. Fraenkel: All I am suggesting is that where there is no reason otherwise there are many situations in which the request for an adjournment is properly denied either because there had been earlier adjournments or because it is known that jurors and witness are going to be available and there will be inconvenienced, there are -- automatic I would ever say, but where there is no reason for objecting, where there is no reason for denial other than I don't like to use the word whim when referred to -- referring to a judge, but I suspect that one can almost say that. The judge insisted that he was going to go on. He was all raring to go. He wanted that --
Tom C. Clark: What you are saying the fact is that under the Constitution where a man is charged with an offence for which he can go to jail, in this case ten days (Inaudible)
Osmond K. Fraenkel: That's right, that's right, that's all I am saying. That's all I am saying.
Speaker: (Inaudible)
Osmond K. Fraenkel: I believe on the Saturday morning when he spoke to it, yes.
Speaker: (Inaudible)
Tom C. Clark: What you are asking us to do is say this reaches constitutional proportion, this exercise of discretion by the trial judge.
Osmond K. Fraenkel: Yes, I believe that it's very convenient to speak of these things as exercises of discretion, but I submit that where there are no factors which bring discretion into play, in other words where there are no factors which have one thing on one side of the balance and something else on the other, then it's not an exercise of discretion, but an arbitrary act.
Tom C. Clark: There will be many here -- he knew on Saturday his lawyer was going to be engaged in another trial, and still he didn't make any effort as far as the record shows of getting another lawyer.
Osmond K. Fraenkel: Because he had -- I should say the reasonable expectation which any New York practitioner has that when he goes into Court and says his lawyer is engaged, that the matter is held for the lawyer's engagement, and there is a rule to that effect as a matter of fact in the courts which is quoted in the brief. If this had been a trial, if this had been a trial the engagement would have been respected. So that I say here there was no question of exercise of discretion in the ordinary sense because there were no factors weighing with the judge's refusal.
Potter Stewart: I'm still not quite clear on what the factors are on the other side, of what rights or of what opportunities was the petitioner denied.
Osmond K. Fraenkel: Well I submit that he was denied the opportunity of effective representation by counsel.
Potter Stewart: You say I mean not quite specifically, all these charges amounted to what he had said as a witness at the preceding criminal trial.
Osmond K. Fraenkel: That's right and he wanted --
Potter Stewart: There is no question about the fact that he did say it.
Osmond K. Fraenkel: No question about the fact that he said it, the question is a development of the circumstances under which he said it; his motivation, his intentions all of which could have been brought to the trial judge's attention more effectively by a lawyer than by the person involved.
Potter Stewart: Now I'm looking at the transcript here and the record from page 93 to 111 all of it was brought to the Court's attention, it had all happened in an open court, you have seen it and heard it.
Osmond K. Fraenkel: It happened in open court but nevertheless things that happened in open court are not necessarily free from inquiry.
Potter Stewart: There was an offer of medical proof in page 111, all of these things, I just wonder what opportunities were denied to him?
Osmond K. Fraenkel: Well, what happened on page 111 was a last ditch plea by the person involved, but it's never as effective as a proper presentation by counsel.
Potter Stewart: Sometimes it's much more effective.
Osmond K. Fraenkel: Not when there has already been hostility between the two individuals involved.
Arthur J. Goldberg: Mr. Fraenkel –
Byron R. White: (Inaudible)
Osmond K. Fraenkel: Well the Court of Appeals didn't agree -- doesn't agree with what I said of course, but it isn't the first time that I've disagreed with the Court of Appeals and on one or two occasions at least this Court has agreed with me, not always, but often enough to make me venturesome --
Byron R. White: (Inaudible)
Osmond K. Fraenkel: That's right, oh yeah.
Byron R. White: (Inaudible)
Osmond K. Fraenkel: Ten days and $250 in fine, which by the way he has served because he was denied a stay and the fine was paid under protest, but --
Arthur J. Goldberg: Mr. Fraenkel what happens to (Inaudible)
Osmond K. Fraenkel: That's right.
Arthur J. Goldberg: (Inaudible)
Osmond K. Fraenkel: That's right.
Arthur J. Goldberg: (Inaudible)
Osmond K. Fraenkel: Well I assume that if he had --
Arthur J. Goldberg: (Inaudible)
Osmond K. Fraenkel: Yes and that was -- we refer to that of course in our briefs here.
Arthur J. Goldberg: (Inaudible)
Osmond K. Fraenkel: That should certainly have been one of the things which a lawyer was going to -- would have done though, a competent lawyer should have done.
Arthur J. Goldberg: (Inaudible)
Osmond K. Fraenkel: Well, I can't say that in so many words, Mr. Justice Goldberg because I don't know that it was formulated precisely like that to the judge, but it was certainly inherent in the situation because the witness had made it perfectly plain that he was emotionally disturbed. The lawyer had said so, the appellant himself said so.
John M. Harlan: (Inaudible) deranged --
Osmond K. Fraenkel: Oh no.
John M. Harlan: -- or insane or --
Osmond K. Fraenkel: No, but the claim is that after having been on the stand for several days and caught in this crossfire of opposition both by the prosecutor and the defense attorney, he had reached a point where he felt he couldn't -- that particular morning instead of feeling of frustration, he was trying to answer questions, was interrupted because he was going further than the question asked. He was asked for instance during the conversation did you tell Mr. Jack such and such thing and what did Mr. Jack say and he started to say well there was much more to it than that. It wasn't -- his reply wasn't just to this particular thing and he was cut off and that happened several times and then he got to the point where he said quietly and respectfully I am sorry I'd like to step down, I'm so upset I can't go any further, I can't even hear the questions.
Tom C. Clark: (Inaudible)
Osmond K. Fraenkel: Well I mean. Mr. Justice Clark I'm talking now before this outburst, on that -- the moment preceding the outburst without any outburst there had been twice or three times repeated requests that he be permitted to step down to compose himself. That is the atmosphere in which this outburst occurred. Now, it is true in the outburst he attacked the judge as well as the counsel on the other side and he had I think once or twice indicated that he felt the judge was cutting off his answers and that the judge was perhaps unduly sympathetic to the point of view of the prosecutor here.
Speaker: (Inaudible)
Osmond K. Fraenkel: Once that occurred yes, once that occurred.
Speaker: (Inaudible)
Osmond K. Fraenkel: Well, the specific request for that apparently was act of these convictions, that's why in answer to the specific request for it was at the -- but implied, I submit. On page 111, I will submit medical proof to-date to show this was an involuntary statement and so forth and was denied by the court, but I'm suggesting that --
Potter Stewart: You don't claim or haven't claimed to-date that the denial of that request was a denial of any constitutional right, do you?
Osmond K. Fraenkel: Well --
Potter Stewart: Do you?
Osmond K. Fraenkel: I would say that in the total picture, yes, but of course specifically that is not within the terms of the Court of Appeals' remittitur.
Arthur J. Goldberg: Mr. Fraenkel --
Osmond K. Fraenkel: It's part --
Arthur J. Goldberg: -- the Chief Justice questioned (Inaudible)
Osmond K. Fraenkel: Yes that's right.
Arthur J. Goldberg: (Inaudible)
Osmond K. Fraenkel: It's not altogether, whether a specific isolated thing in this case is a denial of due process, but whether taking the thing as a picture, the result isn't that this appellant was denied the basic essentials of a fair hearing, namely the real opportunity to defend himself. Now with the question of the statute right of this Judge to sit in this case, Mr. Redfield will deal.
Emanuel Redfield: May it please the Court. If this Court were to rest this decision in this case solely on the question as to whether or not there was a denial of due process because of the circumstances in connection with the contempt proceeding itself with regard to the intent of this appellant or with regard to the question of a proper adjournment, I don't think there would be adequate attention given to this case. I think this case digs deeper and in order to get to the roots of some of the problems that lie in questions of contempt, I brought this case here on appeal and I think this case is a fitting companion to the case of United States against De Ross upon that which you have under consideration and I think it helped develop the entire picture of contempt. Now, in the Panico case which you decided a few months ago, you held almost verbatim what the Ungar here wants and what the result would be, would to send this case back for a new trial if you did reverse and you would still leave the question open as to whether or not due process is accorded to an accused in the contempt proceeding. If you permit the accusing Judge to sit in the case –
Potter Stewart: Well apart from the fact that the, facts were quite different in the Panico case.
Emanuel Redfield: Not totally different --
Potter Stewart: But I believe that could be argued, he was in an institution Mr. Panico, but at the hindsight, the point is that of due process at all that was in the Federal Court.
Emanuel Redfield: Right.
Potter Stewart: And involved the supervisory power of this Court, it wasn't a due process case.
Emanuel Redfield: I'm translating it into due process in this state case. So we come to the question as to whether or not this man was accorded due process of law under the statute of New York as it exists and as construed by the Court of Appeals. The statute permits summary proceedings to be had before the same Judge if the Judge observes the accused and was present during the contempt that resulted. The Court of Appeals so construed it and the Court of Appeals by some queerness had admonished that in the event of a future case of a similar nature that the trial should take place before another Judge, but it didn't do him any good.
Earl Warren: (Inaudible)
Emanuel Redfield: As tradition goes, it has been held that that could be done, but you still might have the same question raised by the defendant at that time, was he of emotional state at the time so that an intent could be spelled out, but that is not the case here.
Earl Warren: (Inaudible)
Emanuel Redfield: It may have in his discretion and in that respect I cannot ignore, but the occasion however of the contempt having evaporated after the trial had ended days later, I don't see what necessity there was for any summary proceeding. The justification that has been sought to eliminate these summary proceedings has been one of necessity that the court has to do something about it at the time so that the trial could proceed, but if the trial is over what necessity is there?
Speaker: (Inaudible)
Emanuel Redfield: It's not (Inaudible) it's a different state of affairs.
Speaker: (Inaudible)
Emanuel Redfield: Fine. So assuming Your Honor, if this were not a contempt proceeding, assuming you had charged him with disorderly conduct in a regular penal prosecution, he would have been entitled to all he is asking for here including a Judge other than the Judge who made the charges against him. He had that alternative. We have duplications of law in this respect in New York in three ways. We have it in this type of proceeding that's before you. We have it in what they call a criminal contempt of prosecution through a grand jury indictment and so on you know which I had here some years ago on the Regan case if you recall and we also have disorderly conduct statute. Now, if this man had been tried for you know minor thing like parking ticket, he would have been entitled to an unbiased Judge and entitled to an adjournment and entitled to right of counsel.
Hugo L. Black: (Inaudible)
Emanuel Redfield: That's is a mystery to me Your Honor, if there is anything --
Hugo L. Black: So that the basis on which they affirmed it.
Emanuel Redfield: Yes, but I would go still further. I wouldn't limit my attack to such situations. I would say that even if there haven't been an attack what the Court of Appeals has said is a condensation of lets say Rule 42 of the Federal practice, but I would go still further. I would say that even if there hasn't been an attack, there should be due process and that there should be an impartial Judge sitting in it if there is no necessity or an emergency for an immediate trial. That's the gist of the whole argument and I think Your Honor made that specifically clear to me in the Green case.
Hugo L. Black: In what connection what claim did they refer to the thing if this was not a personal attack?
Emanuel Redfield: I can't understand that that was on the --
Hugo L. Black: That to support their holding that he was entitled to a different judge?
Emanuel Redfield: I'd assume that this is on the amendment of the remittitur. I -- it's a mystery to me because if there ever was an attack on the Judge if it was here -- any person says the Judge is suppressing evidence, God I don't know what --
Hugo L. Black: They said that Court of Appeals held an appellant contemptuous remark when none would contempt none of us protected the trial jury.
Emanuel Redfield: I know they said that but I disagree with that.
Hugo L. Black: Well did he say what the Chief Judge Ryan (Inaudible) to the judge? Was that -- did he make that remark to the judge?
Emanuel Redfield: This -- about being a personal atttack on him, I didn't -- I didn't follow it I am sorry.
Hugo L. Black: What did he say to the court which the court said was contemptuous?
Emanuel Redfield: Well he, the court held--
Hugo L. Black: I asked you what he said to the court that court held contemptuous.
Emanuel Redfield: Well – he said many things, but the important thing he said was that he was being badgered.
Hugo L. Black: What was the next one?
Emanuel Redfield: And that he was being coerced.
Hugo L. Black: What's next?
Emanuel Redfield: And that he -- and that he -- the court was suppressing the evidence.
Hugo L. Black: Well that -- is that what the Court of Appeals held that it was not a personal attack on a judge?
Emanuel Redfield: That seem so to me that that's what they held, but I don't see there was any foundation for that, but as I said Justice Black, I would go still further in my challenge that my challenge is a deeper one and that is that if the trial at which the contempt took place seized and there was now a contempt proceeding later on, I think such a contempt proceeding should be before an impartial judge because there should be an appearance of impartiality. And from this record you cannot, anybody can conclude that this judge was impartial in his, in his haste, in his lack of temper and also fining him -- sentencing him for 10 days in jail without giving him a chance to obtain a lawyer. I think that covers my argument in a nutshell.
Earl Warren: Mr. Uviller.
H. Richard Uviller: Mr. Chief Justice may it please the Court. As a practicing lawyer and particularly as a prosecutor, I sometimes wish that our Constitution were not still so full of mysteries and surprises, but I think that we do have a right to rely on certain interpretations of this Court dealing with questions in the recent past similar to one in issue. Here we have a Judge who sat during two trials of an extremely difficult and sensitive case. One in which emotions were high, one in which public attention was focused upon the courtroom with great intensity, sat and dealt with a witness who was avowedly a close personal friend of the defendant on trial and yet whose testimony was essential to the prosecution of the case. These two men were named as coconspirators. The conspiracy was such that it was necessarily one which was carried out in secret and the coconspirator was therefore an essential and necessary witness. It was indeed in order to obtain his testimony against the then Borough President of New York that he was accorded immunity from prosecution in the grand jury. Nonetheless, he maintained throughout the first trial, and throughout his testimony in the second trial, an attitude inconsistent with that of a witness in a criminal prosecution. He was avowedly interested in securing an acquittal for his friend, the defendant on trial, and not avowedly but quite evidently from his tactics equally concerned with a securing if he could in this trial. His testimony throughout both trials is replete with instances of evasion or purposeful of failures of recollection, if I can term them such. There is no question about the fact that he saw his role as alternate attorney for the defendant against whom he was purportedly testifying. As a matter of fact there's an exchange in the record itself to that effect where he was asked, you realize of course Mr. Ungar that the defendant here is represented by counsel of his own and Mr. Ungar responded to that, no I do not. Faced with this dilemma, the Court in an effort to be completely fair not only to this difficult witness but perhaps more importantly to the defendant there on trial still might to lead to confine the witness's answer to the proper conduct of a witness at a trial. Time and again he instructed him both in chambers privately, and while he was on the stand that he was to answer questions, that he was not to volunteer information, that he was not to offer objections to questions that he was asked, and that he was not to comment on whether or not those questions were fair and proper questions, but the defendant was represented by an attorney who could both bring out during the normal process of cross examination and a thing that might have been omitted on the direct examination or object to questions that were improper. Nonetheless he persisted in this course of action until it came to the point where he was asked a question of vital and central significance in the trial. He was asked what Mr. Jack said when he, Sidney Ungar, had told him that there was a full scale grand jury investigation in progress concerning this alleged conflict of interest and a high city official. Now of course there was a charge here of conspiring to obstruct justice and to prevent the grand jury in its investigation from learning the truth about these transactions and so it's literally apparent that this question was perhaps the most crucial question at the trial and I think Mr. Ungar realized it. His answer to that question I think can be fairly characterized as nothing short of equivocation. He said that was part of a conversation. He said I cannot answer the question in that form. When the court and I think quite properly as, as after all the man who was charged with responsibility of maintaining an orderly trail on the issues told Mr. Ungar to answer the question. Mr. Ungar turned to him and as the mandate recites in a loud and insolent and disorderly manner shouted this phrase which has been repeated here.
Hugo L. Black: He shouted what?
H. Richard Uviller: He shouted the phrase which has been read here, Your Honor. He shouted that that he is unfit to testify, that the Court is suppressing the evidence. At that point instantly the Court said to him, you are contemptuous and you are also disorderly and insolent. Nonetheless, nonetheless the Court deferred action and indicated that it was to defer action. Now in doing so the court was mindful of a not too ancient decision of this Court in People against -- in Sacher against United States in which divert procedure had been sanctioned by this Court. The deferred exercise of a power, it was held, is not to extinguish it. To delay the administration of an acknowledged power is not to evaporate. Now I do think that we can start someway here and I think perhaps that proper place to start is that a Court does enjoy the inherent power to punish instantly and by an abbreviated procedure a person who is contemptuous and disorderly in its presence. This statute is not vague in defining the crime, this statute adds the additional element which is not present in the federal law that the conduct must tend directly to interrupt the proceedings of the Court or to detract from the dignity normally accorded to a Court of law. Proceeding under this statute, the Court, I think we must acknowledge, could have instantly punished Sidney Ungar for contempt. As a matter of fact Sidney Ungar who was not only an attorney in the State of New York but a very articulate attorney as evidenced by this record itself acknowledged to the Court at the time of the proceedings which are here being reviewed that the Court could have punished him instantly at the time of his utterance. The real question then is whether or not this power which the Court enjoyed at that time was lost by the action of the Court in deferring its exercise.
Hugo L. Black: (Inaudible) keep the Court from being interrupted, that basis, provided that is the basis for disappearance right after the trial was over.
H. Richard Uviller: It certainly would Mr. Justice Black and I think that if that were the only purpose, if that were the only justification for the brief or procedure of a summary contempt, then it would be extremely difficult to argue that the power remained after the purpose of disappear. Nonetheless recalling the Sacher case once again, it was their help and I think with some reason, that the power itself is not based upon the necessity for immediacy only. It is not simply the need to pick action at the point where it will do the most good during the trial. There is an addition --
Hugo L. Black: (Inaudible) time to time, have from time to time, have they not if the judge waited until the trial was over, looked to see if the attack was so personal that judge should not sit on it and remanded it for trial by different judge.
H. Richard Uviller: Yes, certainly if the attack is such, if the -- record itself indicates that the Court has lost that appearance of impartiality which is so vital to a trial and to justice then I should think a better procedure would be for the judge to refer to another judge.
Hugo L. Black: Well I suppose you would agree that this man had told him an unspeakable name and he waited until the case was over, that they ought to (Inaudible)
H. Richard Uviller: No I wouldn't go that far Mr. Justice, for this reason. I believe tat we cannot here assume, all of the judges are of course men, and this was discussed in the Sacher case too, judges are human thank goodness, but I would not conceive --
Hugo L. Black: In the record (Inaudible)
H. Richard Uviller: The record -- I think the record in case shows if I may Mr. Justice Black that this judge exercised super human self control. There is not one single incident in this record which shows that the Court in any way became entangled with the defendant, that he abused the defendant, that he even provoked the defendant. The only utterances by this Court that were reflected in this record are efforts of the Court to contain the witness.
Hugo L. Black: The outstanding rule in that Court that not effective, it should leave the court (Inaudible)
H. Richard Uviller: There is no such standing rule, no Your Honor.
Hugo L. Black: Was that a rule enforced by this judge?
H. Richard Uviller: This particular judge is very strict about that, and during certain proceedings he will not allow spectators to leave, this apparently was one of them. Of course during the charge to the jury when the Court is also the focus of the attention in the courtroom there is a standing rule that no spectators leave or come in, and I think that probably the judge was applying that rule to this situation.
Hugo L. Black: Although that rule -- there was no such general rule in the other courtrooms?
H. Richard Uviller: There is no such general rule that I know of Your Honor, but I must say that occurrences such as this are extremely rare in that Court. But --
Hugo L. Black: For what, for spectators to leave?
H. Richard Uviller: No for a court to adjudicate a man in contempt.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Yes.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: No Your Honor I would say that the basis of this contempt was both aspects of the statute, but the statute does not talk about an actual disruption of the proceedings of the Court, but rather actions tending to disrupt, and if it were not for the fact that the Court advanced the recess, the luncheon recess, at that point it might very well actually disrupted, and I think it certainly could be labeled conduct tending to disrupt, when a witness has flatly stated in the middle of his testimony that he will not go on. I should think that this certainly would be considered disruption of the progress of trial.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Well actually I have not quiet completed that thought. What I was going to say, was that I think that there is not only one purpose to the summary contempt power. I think that the immediacy is one and I think that a brief procedure which is the other aspect of summary contempt of course naturally would go along with the necessity for immediate exercise, but I think there is a second and the second is vital and it is the second I think which justifies the matter of application of the contempt power in this case.
Hugo L. Black: What is the second?
H. Richard Uviller: The second I believe is this that the court, the sitting court has knowledge of all the facts necessary to make the adjudication and hence there is no trial of an issue in the conventional sense. There is no necessity to try and establish the truth or falsity of an alleged state of facts. It is characteristic of the work of a trial court that by its various procedures which over the ages have come down to us as the best or the most effective that we can think of, by cross examination, by confrontation, by the use of an attorney services, by adjournment in order to produce witnesses and so forth, we are attempting to establish a fact to the satisfaction of a fact finder who has no personal knowledge of the existence or non existence of that prior event.
Hugo L. Black: I thought that in one or two cases, may be I am wrong, that we had referred to the first case that ever held of the judge, five men punished with contempt of court, summarily and explained that as (Inaudible) according to the language in that first case, that if it only do that when it would interrupt the proceedings of the Court if it didn't act at once.
H. Richard Uviller: I think I know the doctrine that Your Honor is referring to and it certainly has been stated by many justices of this Court throughout the history of these proceedings that only the least power necessary to the proposed end is justified. I would be the first to concede that the contempt power, the power of a judge sitting in a trial to send a man to jail without the conventional safeguards attaching to a trial is a grave, a serious and a dangerous power. Perhaps it is indeed a unique power, but I would submit to the Court that it is both a necessary power and a logically valid power for a Court sitting and observing events in its presence, which events, a front the Court as an institution? I believe that such a court is qualified to pass upon the facts without evidence, without further evidence and that which he has already heard. I think they are --
Hugo L. Black: I thought it had been held one or two cases if that were not true, unless the -- what the man did was necessarily to do that at the time to prevent further interruption of the court (Inaudible)
H. Richard Uviller: Well, Your Honor all I can refer to is the Sacher case in the first instance in which that was held and secondly to something which is perhaps not as explicit as it might be in Panico case. The Panico case could have been reversed on the basis of facts that the contempt procedure occurred at the end of the trial, but it was deferred, but it was not, and actually the substance of the Panico decision it seems to be would apply equally well whether this contempt had taken place immediately or later, for there, there was indeed an affirmative defense of insanity, a new fact which would not have been in the knowledge of the judge who was sitting at the trial and which would require procedures which are conventionally associated with the trial of an issue.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Yes Your Honor I should say he is and for this reason. There is a difference between factors affecting intent and factors affecting malice and the defense of insanity. Had the defendant in this case asserted or alleged in any manner to the Court that he was not competent in the legal sense, that he was no capable of formulating an intent for conventional reasons, conventional medical psychiatric reasons then I should say that an issue would be raised which would require the taking of proof, because the Judge would not be qualified to deal with that issue on the basis of what he had observed.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: No, not at all, I don't and I don't think the Judge ignored it here. I think that what occurred here was simply this, the defendant said, Your Honor, I was over worked, I was emotionally shaken up, he told the Judge when he would returned by the way that afternoon that he had a shot and that he was feel all right and the Judge sure heard this explanation and accepted it, told the jury he had a shot and so on. At the conclusion during the proceedings here by the way which were quite (Inaudible) whether he had lawyer or not. He did state that he wanted to produce medical testimony to show that he was over, emotionally -- under an emotional strain, and consequentially the outburst was in effect not a calculated one in that sense, not intentional in that sense. The Court stated to him I will take that into consideration. Now he never apologized, he never apologized. The Court did say, as to apology it's something which the court might take into consideration, but he never did apologize nor did he ever --
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Only from the court itself Your Honor, I think you will find that the court said as to apology if this is something which --
Potter Stewart: On page 105 and on page 107, on page 105 in the paragraph at about the middle of the page --
H. Richard Uviller: Yes at no time was there any intent on my part to do or say anything to affront the dignity of the Court.
Potter Stewart: It's not -- technically it's not an apology, but a quote as to that which -- and on page 104 the, next to last paragraph on the page, I'm satisfied in my own mind --
H. Richard Uviller: I never intended.
Potter Stewart: I never intended to commit a contempt of court.
H. Richard Uviller: Over and over again he says this and quite clear --
Potter Stewart: And I suppose that to which the court referred in speaking of an apology in the last paragraph on page 107 --
H. Richard Uviller: I think he did that gave it a more --
Potter Stewart: Although it was not technically an apology.
H. Richard Uviller: Technically it was not at all. As a matter of fact an apology I should think at the very least involves an admission or error and of course this defendant never wants at any point the proceedings admitted any error on his part, but merely said that he didn't mean to have such an outburst. Well, I think we can fairly say Mr. Justice Goldberg that nobody intends to commit a contempt in the sense of intents to put himself in jail, to that extent I think that you don't need any psychiatric testimony. The question here was what was the effect upon this act of his mental condition? I think that he fully stated to the court what he intended to prove by the witness and I think that the court indicated that it fully took that into consideration. However I think the court very rightly said, all witnesses are in under some strain when they are in the witness stand, I saw what happened, I saw what lead up to it, I followed your conduct up to this point, and I can appreciate that you were in fact distraught and so forth, but to my way of thinking although this is some -- had some effect in mitigation perhaps after all the limit here was 30 days that he could have imposed and he may very well have mitigated the punishment on that account. I think the court very rightly felt that this was not legal justification in the sense of proof of innocence. To sum it up simply, I think that where the court has the knowledge upon which the adjudication is based then the conventional processes of trial are not -- the great values that we normally attribute to them. When we say that the right to confront, to cross examine, to have an adjournment, to have an attorney are such valued things in this system of law and justice which we are all so proud of, I think that we are looking at them not as ends in themselves but rather as means to assure a fair result and I think that where there are alternate means then there is a second and adequate justification for the imposition of the power of summary contempt. Now --
Speaker: (Inaudible)
H. Richard Uviller: Yes indeed yeah.
Speaker: (Inaudible)
H. Richard Uviller: Yes indeed.
Speaker: Was there any further outbursts?
H. Richard Uviller: There was no further outburst or incident the extent to which the court effectively deterred such outburst by its probe statement that you are contemptuous. Now, this I do not contend that this was an adjudication of contempt, but I think it is a far clearer indication of the serious manner in which the Court viewed that out burst and perhaps a notice at least of a sort as to what was to come. I think that the effectiveness of that immediate statement itself provides some justification for summary contempt powers. Now, there has been considerable said here and written in the past about the question of whether or not the court was actually presiding at the time was disqualified by the very rationale which I have offered. There was of course a time when juries passed upon facts based upon their personal knowledge of the incident and the time came when disqualification became the very same factor as it was previously considered qualification. It is now felt that a jury which has previous knowledge of the facts, personal knowledge of the fact that disqualifies him from sitting at a trial, shouldn't the same reasoning be applied to the Judge. I have said the justification for the summary power that exercised in a differed manner is the Judge's knowledge of the fact. Does knowledge of the facts automatically import prejudice? Well, it has been said by this Court that every contempt of court in the immediate view in presence of the Court is to a certain extent and necessarily an attack upon the Judge as an individual. After all it is the judge who is responsible for the order in the Court and the identity between the word Judge and Court on a trial level is something which is felt by all in the Courtroom. Is it then so that on no occasion where we constitutionally assume that a Judge has the detachment to deal with problems of disorder in the Courtroom, which he is assumed to have in the exercise of so many other his duties. I respectfully submit to this court that we cannot make such an assumption. Now, the Court of Appeals in his case has indicated that they feel that were practicable, it would be the better procedure for a Judge to disqualify himself when he is the object of an attack and I would be the first to agree that perhaps it is indeed the better practice. This Court indicated in the Offutt case that they had shared that opinion, but I don't think that matters the issue before the Court here. It is not the question of whether it would have been a better practice or whether in this case it would have been better for the Court to disqualify himself. Here the question is was there a violation in due process in the application of this statute by reason of its failure to do so and I submit to this Court that that's an entirely different matter. There are many areas of discretion whether it be in the imposition of a sentence or whether it be in the granting of an adjournment which has great effect upon the outcome of a case and which are felt by the litigant as an important issue in the case and yet few of them, few of them rise to that proportion where this Court will state as a matter of constitutional interpretation that there has been a lack of due process in the Court's decision, choice.
Speaker: (Inaudible)
H. Richard Uviller: Well I should say Judge Sarafite has been on the bench for five to six year now Your Honor, I'm not absolutely certain. He was Chief Assistant as counsel indicated in the district attorney's office since the days of Thomas (Inaudible). I think that the Court here insofar as his words of any importance in this matter fully indicated that he himself was conscious of the danger of sitting in judgment one a case in which he had been present at the incident that he was making conscientious efforts and I think that the record is replete with verification of how conscientious he was under difficult circumstances, to divorce any personal feelings from his judgment of the of affront of the court. He stated in so many words that this were a matter between us as individuals, I would ignore, but I'm charged with maintaining the dignity of the Court in which I preside and as the Judge in the Court I must be able to divorce myself and I will and I do and I think there is no reason for believing that he couldn't. Indeed if we hold otherwise here as a matter of constitutional law then there is no summary contempt instantly imposed either for certainly the Court if he acts immediately on the instant when the affront occurs is less able to detach himself to give the cool reflection and reconsideration for the incident that he wouldn't be able to do if he adopted the procedure in this case.
Speaker: (Inaudible)
H. Richard Uviller: Oh, it would be quite different than this. I think that's, yes. It may, it may come on the second branch of it.
Speaker: (Inaudible)
H. Richard Uviller: I can't see --
Speaker: (Inaudible)
H. Richard Uviller: I don't think there would be different constitutional rules that would apply. I do see a distinction, certainly those matters which do not directly tend to interrupt the proceedings or maybe just as effectively punished, I mean dignity of the court. Maybe justice effectively maintained by some procedure which is more in the nature of a trial or more plenary procedure whether it'd be by non summary contempt or by indictment for a crime. Nonetheless I do not think that they would be -- that the two are mutually exclusive. I do think that a matter which doesn't interrupt the proceedings but does detract from the dignity of the sitting Court is punishable somehow from a constitutional stand point and the reason is, the reason that I gave.
Hugo L. Black: The Court has held punish the consent -- contempt on the ground that something is said may detract from the dignity of the Court. What case are you referring?
H. Richard Uviller: Well I am relying on the Sacher case right now.
Hugo L. Black: Did it say that --
H. Richard Uviller: I -- that's my understanding of it, yes sir.
Hugo L. Black: But it was based on the fact that they interrupted the Court's procedure to act fair --
H. Richard Uviller: Well there was no actual interruption in the sense that the trial -- there was interruption by harrying and colloquy but there no actual interruption in the sense that the trial was ever arrested and could no longer proceed, just as there was an appeal --
Hugo L. Black: Of course there has long been a -- many discussions – commentators have discussed how contempt and most of them at least in recent years have said that now we are not saying that Court can punish the contempt because the Court thinks its dignity is affected, that's what the most (Inaudible) have grown out of it connection with contempt and that – both the courts and commentators have abandoned in such argument a long time ago.
H. Richard Uviller: Well may I avoid that question at least to this extent Your Honor. In the instant case I don't think that there is any question at all, but that there was conduct tending to interrupt the proceeding of the Court.
Hugo L. Black: I understand that.
H. Richard Uviller: As far as the dignity of the Court is concerned I would say that the same, the same rationale would apply and that is that the Court as a witness that the Court as a detached witness is just as capable of making an adjudication without a full scale trial on the matter of dignity. I should say also I think that perhaps there's somewhat unrealistic line. I can think of facts which will be almost impossible to determine whether it is one, or the other, or perhaps a bit of both because certainly conduct which does interrupt the trial also detracts on the dignity of the court. And frequently abusive conduct, something more than the ordinary heat of advocacy would in addition be conduct which would tend to interrupt the orderly progress of the trial. I don't think that interruption should be taken so literally that there actually has to be the death of a jury before there is an interruption. I think interruption means, interruption of the orderly progress withdrawal. Interruption in the sense that, for example a lawyer refuses to confine his questions to proper questions, refuses to abide by rulings of the Court directing him in his examination, I think that this would be conduct both tending to interrupt and detracting him from the dignity of Court. After all obedience --
Hugo L. Black: Actually that is a different word of connection with contempt and has been throughout the years judges get the sense of it, and they think their dignity is offended because I thought that all the commentators and cases had lot of sense to tie it inevitably the whole idea which will allow the Judge who thinks his dignity has been hurt, can just (Inaudible) man up and punish him for contempt. I understand the interruption, that's quite a different thing.
H. Richard Uviller: If we hypothesize a pure case of affront to dignity in which there is no interruption at all and yet it is a case which takes place in immediate view and presence of a sitting Court then I should think that perhaps it would be better for the Judge to defer.
Hugo L. Black: Just to be better.
H. Richard Uviller: Yes I think it would be better --
Hugo L. Black: Do you think you'd still have the right to do it?
H. Richard Uviller: I still think he would have the power.
Hugo L. Black: Try them at the right of the hearing, try them –
H. Richard Uviller: – well you are not --
Hugo L. Black: Or somebody else in the courtroom had seen it differently.
H. Richard Uviller: Well --
Hugo L. Black: To be that the court statement to be taken as infallible that all happened and all the inferences could be drawn from it.
H. Richard Uviller: Not infallible -- but it was --
Hugo L. Black: If he can say my dignity has been offended?
H. Richard Uviller: No it wouldn't be Your Honor, because actually we have a right of appeal and review by an Appellant Court based upon matters which are in the record and which are fully described in a mandate and that review by appeal to me is always been the safeguard against a Judge -- trial Judge's view of himself as infallible.
Hugo L. Black: That's – that's by other Judges?
H. Richard Uviller: Well other judges have appealed.
Hugo L. Black: I understand you, but I thought your state gave a jury trial. I thought your state gave a jury trial.
H. Richard Uviller: Well we -- well we do and we don't. It's reasonable but we do give it, yes. This is, if this had been proceeded -- this, this very conduct itself probably could have been the subject of criminal prosecution.
Hugo L. Black: That's right.
H. Richard Uviller: And if so there would be have been a trial.
Hugo L. Black: What's the man would have had then, what kind of trial?
H. Richard Uviller: Well I will, that would be up to him, I consume that if he moved for a jury trial, could very well be the --
Hugo L. Black: If you are asking (Inaudible)
H. Richard Uviller: Yes you do, you do have to move forward.
Hugo L. Black: But your constitution provides for it, doesn't it?
H. Richard Uviller: As modified to this extent. And if he had received a jury trial in this case, that would have been an independent fact finder, that would have been proof, but the Judge himself in testifying certainly would – a very respected witness before a jury and if it had not been a jury trial, but had been a trial before another judge, I think that it maybe some what unrealistic to assume that a Judge, if he appears as a witness before a colleague, would be any more discredited then if he passes upon the fact himself.
Byron R. White: (Inaudible) had written the note to the Judge, the Judge was, the same thing happened expect that while he was testifying, he wrote this note, the Judge had said, you are coercing me, you are suppressing evidence, just handed it up to the judge.
H. Richard Uviller: While he was actually sitting as a witness.
Byron R. White: Yes. I take it that you would say the same result could follow.
H. Richard Uviller: I am actually not sure but in the actual view and --
Byron R. White: No that would certainly offend the dignity of the Judge.
H. Richard Uviller: Yes, but in the actual view and presence of the sitting Court, we may import something on someone more open nature, after all there was a jury here, there was the press, public, all whom saw and witnessed, experienced this --
Byron R. White: So that you are suggesting that in front of a judge really a (Inaudible) effect of the evidence on the jury or might undermine it or the -- or might really substantially affect the outcome of the trial.
H. Richard Uviller: Not so much no -- I am not sure that the outburst would have affected the outcome of the trial.
Byron R. White: Well then why wouldn't the note, why wouldn't the written note be--
H. Richard Uviller: But I think it would have publically offended the dignity of the court and because of its vocal nature --
Byron R. White: What that's got to do with anything?
Speaker: (Inaudible)
H. Richard Uviller: Well I retire from that point then and say that it would have tended to interrupt the proceedings of the court. Well in a matter the note would not and consequently it's quite possible that it might not come within the purview of the statute. When a -- when a Judge is addressed by note, it seems to me it might very well be said that he is being addressed in a private capacity that he is not being addressed as a presiding official in the Court.
Speaker: (Inaudible)[Laughter]
H. Richard Uviller: I think I would like to come finally to the question of the denial of the adjournment. This denial of the adjournment in the procedure itself has been alleged here to amount to a denial of due process in and off itself. I would hate to think that this Court was devoting all it's time and energy and effort to determine the question of whether or not judge abused his discretion in denying this application for an adjournment, but then of course I hate to also think that this case might not be before this Court had it not been for the imposition of a $250 fine in addition to the prison term, but that is the contention here that, that --
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: But I submit Your Honor that at least I could argue that the case would be moved had it not been for the $250 fine.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Well, that may very well be so, but I would argue --
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Yes, but I would argue that the -- that there would be no natural result flowing as far as disbarment is concerned from the contempt, that's quiet an independent proceeding.
Speaker: (Inaudible)
H. Richard Uviller: That I suppose is the issue is not -- is the denial of this adjournment, the same thing as the denial of adequate opportunity to be heard.
Speaker: (Inaudible)
H. Richard Uviller: As basic proposition of law I should certainly say that the Constitution requires an adequate opportunity to be heard and to defend oneself against a criminal charge.
Speaker: (Inaudible)
H. Richard Uviller: No.
Speaker: (Inaudible)
H. Richard Uviller: No. But I do say that in this instance we do not have that situation. We do not have the denial of an adequate opportunity to defend oneself against the criminal charge.
Speaker: (Inaudible)
H. Richard Uviller: That's correct. I would say that under those circumstances he was entitled to the adjournment, because I think under those circumstances he was entitled to an attorney and all that implies.
Speaker: (Inaudible)
H. Richard Uviller: That's correct sir, that's correct. First because it's not a trial and second because it's not a criminal matter. It is adjudication. The fact has already been established.
Speaker: (Inaudible)
H. Richard Uviller: No he goes to different jails as a matter of fact Your Honor. [Attempt to Laughter] He goes to the jail with all the fellows who haven't their alimony. He went to the civil jail. As a matter of fact there is some further indication to the fact that although whether this is criminal or civil maybe somewhat confused in New York, certainly there are many aspects of it, which are civil, although it is denominated criminal contempt, but I would suggest that the essential distinction is this is not a trial and that a lawyer is not required for a man to make an excuse, for a man to give a factor, an extenuation. Certainly in this instance it is perfectly evident from this record that no lawyer could have done more for Sidney Ungar than he did for himself.
Speaker: (Inaudible)
H. Richard Uviller: There are many things at sentence which a lawyer can do, which the lawyer could not do here. He can make motions to set aside, he can make motions and arrest of judgment, which in New York are quiet tactical.
Speaker: (Inaudible)
H. Richard Uviller: I think not. First, as to the first thing, filing of paper that it should had been heard before a different judge. This Court does not put a lot of stress on the filing of papers from the courts of New York and the defendant orally made that motion to the Court, so his rights to that extent were fully preserved, if the motion was made it was denied, it was reviewed by the appellate courts. Secondly as to the necessity to proceed before a second judge in a case of this sort, the matters of disqualification were fully discussed by this defendant himself. Consequently I don't think that a lawyer could be proceeded in any way more adequately than he did. On the question of the stead, this is important, because one matter that has not yet been mentioned here, is what was the alleged purpose of the request? Certainly the lawyer said I'm engaged, certainly Ungar said he needs an adjournment, but for what specifically did he need that adjournment, what did he say he needed the adjournment for? What he said he needed the adjournment for was to test the legality of these proceedings by a writ presumably in the appellate division and as he said if necessary in the Court of Appeals. In other words, what he wished to do, during this adjournment was not produce evidence, nothing relating to the preparation of the trial of the issue so to speak, but try and have the appeal of the issue adjudicated in advance by writ. That I submit was considered by the Court as one of the reasons for denying the request of adjournment and I submit further that it was a perfectly reasonable disposition of the request. In all probability had there been a petition for a writ in advance in the nature of a writ of prohibition, it would have been denied as premature, normally matters of the legality of the proceeding are reviewed on appeal after the adjudication.
Speaker: (Inaudible)
H. Richard Uviller: There is no evidence to be expressed.
Speaker: (Inaudible)
H. Richard Uviller: For that there is a statutory motion to be made in advance in that instance. As far as the stay is concerned I might go further and say that after this adjudication, this also has not been referred to here, but after this adjudication there were numerous obligations to several courts in New York for a stay of the judgment imposed by Judge Sarafite. There were motions for certificates of reasonable doubt, there were applications and petitions for prohibitions and certioraris, during the ten days that he actually served and at that time he was in jail, he was represented by several lawyers seeking every possible available means of staying the execution of the judgment until it could be tested. It was unsuccessful in that regard, but I submit that the use of these procedures is very a valuable indicia of the fairness of the procedure and again of the lack of necessity to grant an adjournment in order to accomplish the same thing in advance of the adjudication.
Byron R. White: (Inaudible)
H. Richard Uviller: They were according to the New York Court of Appeals Mr. Justice White. Actually the only way we can tell for sure is because in New York there are alternative means of review, one appropriate –
Byron R. White: (Inaudible)
H. Richard Uviller: No it would have to have been clear. Actually the statutes self says maybe punished summarily if it's in the immediate due and presence of the court, it doesn't say it has to be. I think that if the Court had done that, the Court appearing as a witness, others appearing as a witness before a colleague, I think in all likelihood the result will be the same since the credibility of this particular judge is not bad, but whether it would have been or not I think the --
Byron R. White: The procedures --
H. Richard Uviller: The procedures would have been very different and I --
Byron R. White: (Inaudible)
H. Richard Uviller: I think that the counsel should be afforded.
Byron R. White: (Inaudible)
H. Richard Uviller: Not in New York at the present time no, in the present time jury trial is right in New York only in crimes and I think that even a plenary contempt procedure is not considered a trial of a crime.
Speaker: (Inaudible)
H. Richard Uviller: Well one thing I think that there would have to be the right to cross-examination, the right to counsel. Judge Sarafite would have to testify and be subject to cross examination. The right to call --
Speaker: (Inaudible)
H. Richard Uviller: Exactly. There was a full courtroom, it may very well be the jurors who were strategically placed from the standpoint of opportunity to observe and hear these events might have to be called as witnesses or subject to examination. I can foresee really quite an extensive trial in view of the number of witnesses in order to establish the fact that one, there was a loud and disorderly noise made by this man and two that the facts and circumstances surrounding the utterance was such that the intent to disrupt the proceedings was manifest from these actions. In addition thereto there might possibly have been matters offered if not in actual defense, at least in mitigation from the standpoint of his own testimony, I'm sure that he would take the opportunity as he did in his extensive affidavits on appeal in this case to show why he thought that Hulan Jack was innocent and why he thought that Hulan Jack was not getting a fair trial in order to give as he was very anxious to do, to give a public airing to his view of the facts, which --
Speaker: (Inaudible)
H. Richard Uviller: No, Jack was convicted, he was convicted, he was acquitted of some counts, but he was convicted of the underlying count in his trial.
Hugo L. Black: (Inaudible) as merely to offend the personal sensitiveness of the judge, but in prejudice to expeditious orders and (Inaudible). Several other cases are cited in your brief, which we decided, which drew the distinction pointed out that the original (Inaudible) and others that have followed it limited the trial to Terro case and the Cook case and other that have followed it limited (Inaudible) there was actual -- actually something took place in the presence of this Court that interrupted the orderly process of this Court, that it couldn't go on unless you punished them immediately, I think we've had several (Inaudible)
H. Richard Uviller: Well I thank you for that Mr. Justice Black. I wonder whether that implies also that immediacy is the only justification.
Hugo L. Black: No the Sacher case held different to that, that's right. The Sacher case held that immediacy was -- measured up to the standards where you can try to submit it at the beginning, you could try and submit it after the end of the case.
H. Richard Uviller: Yes.
Hugo L. Black: Under the standards of what constitutes -- which can be punished summarily?
H. Richard Uviller: Factually certainly this case is extremely close to the Sacher case, both in the nature of the difficulties with the -- in that case the lawyer, in this case the witness, and the difficulties, the problems that was imposed for the continuation of an orderly trial. I think that it was with the Sacher case in mind that the Court adopted this particular procedure, because of the closeness of the facts.
Hugo L. Black: A number of courts have -- seem to think that Sacher opened up the door to wait until the case is over, punish a man under all circumstances summarily but I think a careful reading of the Sacher case could demonstrate that it did not justify any such conclusion.
H. Richard Uviller: Well Your Honor has termed the contempt power, an anomaly in law. I can only say in response to that how much anomalies would it be if the Court had the power to jail a man instantly and without any written charges or opportunity to think, and in the heat of the moment, but could not exercise the same power.
Hugo L. Black: I'm raising the question as whether this was enough to punish him because it made you up to the standard of consequences that occur without bringing about summary punishment denying a man the right to trial by jury and all the other procedurals, that's the difference.
H. Richard Uviller: That -- I fully recognize it and I certainly think that limitation has to be placed on this extraordinary power, but I stress to the Court, that all of the effects of the delay in exercise on this power accrued to the benefit of this appellant, he had written charges, he never would have had them before, they are clear and explicitly, they set forth not only in the contempt itself which he was ultimately convicted of, but they set forth all of the instances that proceeded it, which gave rise to the Court's belief that he intended to disrupt. He was given not only five days to read the charges themselves which after all is considerable for an attorney, whether it snowed or not, but he was in addition warned very clearly when he left the stand that this would be the action of the Court. On none of these benefits of time would have been his had the Court exercised the acknowledged power to punish him instantly. In addition thereto the Court itself had an opportunity, very important opportunity, to reflect in the coolest of the cessation of hostility, if you will, after the trial has been complete upon the acts that were perpetrated in his presence and upon their significance. To reflect upon the proceeding experience which he had had with this particular witness in the two trials and whether or not this did indicate a contumacious attitude had appeared to him at the moment.
Potter Stewart: The Sacher case wasn't decided on any constitutional ground, was it? It was – it involved a construction of Rule 42A of the Federal Rules of Criminal Procedure.
H. Richard Uviller: Yes that's correct, it did. As a matter of fact –
Potter Stewart: The descent talked about constitutional consideration.
H. Richard Uviller: Quite thoroughly yes. Actually this was purely a construction of the Federal Rule 42A and 42B.
Potter Stewart: Yes.
H. Richard Uviller: However, I think that Justice Jackson in discussing the nature of the power which was embodied in that rule went somewhat beyond the limited question on which certiorari was originally granted. I should like to point out one other thing before I sit down and that is simply this. The Sacher case made the point that there is wisdom in the deferment of punishment under certain circumstances, and I would like to relate that doctrine if I can for a moment to the facts of this case. Not only was this witness in the middle of his testimony at the time that this out burst occurred, not only was he required further as a witness which would have made it extremely difficult to punish him, but had it been done in the absence of a jury, I do not think that we can say that there would have been no effect on the trial from the defendant standpoint. First this Court has indicated that an adjudication of contempt should not be done in secret that it must be a public proceeding. This was a highly publicized trial. If the jury did not hear about it directly, they likely would have heard about it indirectly. Secondly, it may very well be that the jury would have had to have been informed that this witness had been adjudicated in contempt because it was a factor certainly affecting his credibility as a witness. In addition it may have had a very deleterious effect open the bias of the witness. Had this man been adjudicated in contempt and the punishment deferred, he might very well have then slanted his testimony thereafter, abandoned his friendship for Hulan Jack once in for all and become if anything an overly cooperative witness for the people to the defendant's determent. And finally any further witnesses who might have been called by the people might themselves had been pressured or intimidated by the fact that a previous witness was held in contempt on the stand and have been overly favorable to the district attorney or overly cooperative with the prosecution.
Potter Stewart: Under the New York procedure could he have been found guilty of contempt in the middle of the trial and his -- and sentence deferred --.
H. Richard Uviller: Yes it could have been, but I think that that would have been an --.
Potter Stewart: Well like you say your point is that would have been a -- that's a very undesirable thing.
H. Richard Uviller: As a matter of fact that's what he told the Judge at the time of his procedure itself. He said that's what you should have done or could have done in this case but since you didn't do it, now you have no power over me that was for sum and substance of his plea to the Court. But I submit that although the Court could have, I think that it would have been a very unwise thing for the Court to have done.
Potter Stewart: Sentence could have been deferred.
H. Richard Uviller: I believe so, no sentence normally deferred after the adjudication in a trial.
Potter Stewart: Well because that's an opportunity for a -- at least to the federal system for a pre-sentence investigation.
H. Richard Uviller: Actually I would say as a factual matter not to get too technical about that in effect what was done here, because the Court did say you are contemptuous and then when the proceeding occurred the Court in effect merely asked him whether he had anything to say before sentence was imposed upon him. So --
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: Not at all Justice Goldberg, not at all, I do not see, I do not see why the mere fact that the adjudication can be deferred and in fact should be deferred that the contempt was not one which tended to interrupt the proceedings of the Court.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: I'm sorry.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: I think it would be if you are viewing the two Justice Goldberg as inconsistent, that the same contempt could not be at the same time one that affronts the dignity of the court and one which interrupts proceedings or intends to interrupt.
Arthur J. Goldberg: (Inaudible)
H. Richard Uviller: So in conclusion I suggest to the Court that if the Sacher case is still good law that the principles there, so thoroughly examined, control this case. I suggest that the Court in wisely deferring this adjudication did not lose the power which he indisputably had at the outset and I think that by reason of the benefits that were accorded to this defendant from the deferment, it has not become constitutionally entitled to greater benefits. Thank you.
Osmond K. Fraenkel: No Rebuttal.
Earl Warren: No rebuttal?
Osmond K. Fraenkel: No Your Honor.