Sacher v. United States , 72 S. Ct. 451 ( 1952 )

Mr. Justice Jackson

delivered the opinion of the Court.

After a turbulent nine months of trial, eleven Communist Party leaders were convicted of violating the Smith Act.¹ On receiving the verdict, the trial judge at once filed a certificate under Rule 42 (a), Fed. Rules Crim. Proc., finding petitioners guilty of criminal contempt and imposing various jail terms up to six months. Those sentenced were defense counsel, with the exception of one defendant who had elected to conduct his own case.

The Court of Appeals reviewed the judge’s action, both on facts and law, reversed some specifications of contempt, but affirmed the conviction and sentences.² Judge Augustus Hand, who favored affirmance on all charges, pronounced petitioners’ conduct concerted and wilfully obstructive and described it as including “persistent obstructive colloquies, objections, arguments, and many groundless charges against the court . ...”³ Judge Frank, who favored reversal of those specifications which were reversed, declared that the court affirmed the remaining ones “only because of the lawyers’ outrageous conduct — conduct of a kind which no lawyer owes his client, which cannot ever be justified, and which was never employed by those advocates, for minorities or for the unpopular, whose courage has made lawyerdom proud.” ⁴ Judge Clark, who would have reversed the entire judgment because of the procedure under consideration by us, began his opinion: “To one schooled in Anglo-Saxon traditions of legal decorum, the resistance pressed by these appellants on various occasions to the rulings of the trial judge necessarily appears abominable.” ⁵

The actual effect of petitioners’ conduct on the trial and on the burden of subsequent courts in reviewing an unnecessarily large record also was noted by a differently composed Court of Appeals when they sought reversal of their clients’ conviction and assigned misconduct and bias of the trial judge as one of the grounds. The Court, found that it could not consider the accusations against the judge separately from behavior of counsel. It unanimously found their charges against the trial judge “completely unconvincing,” and of their own conduct said, “All was done that could contribute to make impossible an orderly and speedy dispatch of the case . ...”⁶ The nature of this obstruction was thus described:

“The record discloses a judge, sorely tried for many months of turmoil, constantly provoked by useless bickering, exposed to offensive slights and insults, harried with interminable repetition, who, if at times he did not conduct himself with the imperturbability of a Rhadamanthus, showed considerably greater self-control and forbearance than it is given to most judges to possess.” ⁷

We denied petition for further review of the contempt issue.⁸ On reconsideration, however, the importance of clarifying the permissible practice in such cases persuaded us to grant certiorari, limited to one question of procedure on which there was disagreement in the court below. Our order stated the issue for consideration:

"... The sole question for review is: Was the charge of contempt, as and when certified, one which the accusing judge was authorized under Rule 42 (a) . . . to determine and punish himself; or was it one to be adjudged and punished under Rule 42 (b) only by a judge other than the accusing one and after notice, hearing, and opportunity to defend?” ⁹

The certificate of contempt fills sixty pages of our record and incorporates, by reference, the 13,000 pages of trial record. The certificate in full¹⁰ and summary of relevant evidence have been reported below. Because our limited review does not require or permit reexamination of the facts, no purpose would be served by detailed recitals. It is relevant to the questions of law to observe that the behavior punished as a result of the Court of Appeals’ judgment has these characteristics: It took place in the immediate presence of the trial judge; it consisted of breaches of decorum and disobedience in the presence of the jury of his orders and rulings upon the trial; the misconduct was professional in that it was that of lawyers, or of a layman acting as his own lawyer. In addition, conviction is not based on an isolated instance of hasty contumacious speech or behavior, but upon a course of conduct long-continued in the face of warnings that it was regarded by the court as contemptuous. The nature of the deportment was not such as merely to offend personal sensitivities of the judge, but it prejudiced the expeditious, orderly and dispassionate conduct of the trial.

We have taken no issue as to the statute which confers power on a federal court to punish for contempt,¹¹ but only as to the regularity of the procedure under Rule 42,¹² designed to provide for the manner of exercising that power. The issue we accepted for review is a narrow one. Petitioners do not deny that they might have been summarily punished for their conduct without hearing under Rule 42 (a) if the trial judge had acted at once upon occurrence of each incident. But it is contended that this power of summary punishment expired by reason of two circumstances: (1) that the trial judge awaited completion of the trial, at which time its progress could no longer be obstructed, and hence, it is said, summary action had become unnecessary; and (2) that he included in the certificate a charge that the contemptuous instances were the result of agreement between counsel which, if it existed, was not made in his presence. Therefore, it is argued that petitioners could not be convicted or sentenced except after notice, time for preparation of a defense, and hearing, probably before another judge, as provided in Rule 42 (b).

Rule 42 obviously was intended to make more explicit “the prevailing usages at law” by which the statute has authorized punishment of contempts. 18 U. S. C. §§ 401, 402. No legislative history sheds light on this issue. Practice of District Judges has not been uniform when they have deemed resort to the power necessary.¹³ A variety of questions concerning contempt powers, limitations and procedures have been considered by this Court,¹⁴ but none construed this Rule, which was promulgated by this Court in 1944 and became effective March 26, 1946. Cases prior to it grew out of facts so distinguishing that their decisions are of little value as precedents.

Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. Our criminal processes are adversary in nature and rely upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.

Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court’s considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel’s right to resist it or to insult the judge— his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.

The Rule in question contemplates that occasions may arise when the trial judge must immediately arrest any conduct of such nature that its continuance would break up a trial, so it gives him power to do so summarily. But the petitioners here contend that the Rule not only permits but requires its instant exercise, so that once the emergency has been survived punishment may no longer be summary but can only be administered by the alternative method allowed by Rule 42 (b). We think “summary” as used in this Rule does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure is to inform the court of events not within its own knowledge. The Rule allows summary procedure only as to offenses within the knowledge of the judge because they occurred in his presence.

Reasons for permitting straightway exercise of summary power are not reasons for compelling or encouraging its immediate exercise. Forthwith judgment is not required by the text of the Rule. Still less is such construction appropriate as a safeguard against abuse of the power. If the conduct of these lawyers warranted immediate summary punishment on dozens of occasions, no possible prejudice to them can result from delaying it until the end of the trial if the circumstances permit such delay. The overriding consideration is the integrity and efficiency of the trial process, and if the judge deems immediate action inexpedient he should be allowed discretion to follow the procedure taken in this case. To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client. It might be done out of the presence of the jury, but we> have held that a contempt judgment must be public.¹⁵ Only the naive and inexperienced would assume that news of such action will not reach the jurors. If the court were required also then to pronounce sentence, a construction quite as consistent with the text of the Rule as petitioners’ present contention, it would add to the prejudice. It might also have the additional consequence of depriving defendant of his counsel unless execution of prison sentence were suspended or stayed as speedily as it had been imposed. The procedure on which petitioners now insist is just the procedure most likely to achieve the only discernible purpose of the contemptuous conduct. Had the trial judge here pursued that course, they could have made a formidable assertion that it was unfair to them or to their clients and that a new trial was required on account of it.

In this case counsel repeatedly were warned that their conduct was regarded as contemptuous. No claim can be made that the judge awaited the close of the trial to pounce upon them for some offense unnoted at the time it occurred. If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.

We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.

The other reason ascribed for reversing this case is that the accusing judge charged the petitioners, among other things, with an agreement deliberately entered into in a cold and calculated manner, “to impair my health.” It is not charged that such an agreement was made in the presence of the judge. We need not determine whether a proper construction of the certificate would be that the concert of action which did take place in his presence amounted to an implied agreement or as charging an earlier express verbal agreement to act in concert. This specification was reversed by the Court of Appeals, which, however, found the judgment amply sustained without it, and considered the substantive offenses separable and independent, as do we. It found the judgment amply sustained without the conspiracy count. The sentences ran concurrently, so reversal of one does not require reversal of the other.

A construction of the Rule is advocated which would deny a judge power summarily to punish a contempt that is personal to himself except, perhaps, at a moment when it is necessary to forestall abortion of the trial. His only recourse, it is said, is to become an accuser or complaining witness in a proceeding before another judge.

The Rule itself expresses no such limitation, and the contrary inference is almost inescapable. It is almost inevitable that any contempt of a court committed in the presence of the judge during a trial will be an offense against his dignity and authority. At a trial the court is so much the judge and the judge so much the court that the two terms are used interchangeably in countless opinions in this Court and generally in the literature of the law, and contempt of the one is contempt of the other. It cannot be that summary punishment is only for such minor contempts as leave the judge indifferent and may be evaded by adding hectoring, abusive and defiant conduct toward the judge as an individual. Such an interpretation would nullify, in practice, the power it purports to grant.

We are urged that these sentences will have an intimidating effect on the legal profession, whose members hereafter will decline to appear in trials where “defendants are objects of hostility of those in power,” or will do so under a “cloud of fear” which “threatens the right of the American people to be represented fearlessly and vigorously by counsel.”

That contempt power over counsel, summary or otherwise, is capable of abuse is certain. Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is heir. Most judges, however, recognize and respect courageous, forthright lawyerly conduct. They rarely mistake overzeal or heated words of a man fired with a desire to win, for the contemptuous conduct which defies rulings and deserves punishment. They recognize that our profession necessarily is a contentious one and they respect the lawyer who makes a strenuous effort for his client.

The profession knows that no lawyer is at the mercy of a single federal trial judge. This case demonstrates that before punishment takes effect he may have appeal on law and fact to the Court of Appeals. Petitioners, as yet, have served no part of their sentences but have been enlarged on bail while their conduct has been directly reviewed by one Court of Appeals on their own appeal and considered indirectly by a differently composed Court of Appeals on their clients’ appeal. Some of those judges had trial and appellate experience almost unparalleled in length and variety. These lawyers have not been condemned, as they claim, merely by the impulse of one lone and hostile judge. Their conduct has been condemned by every judge who has examined this record under a duty to review the facts. It is to be doubted whether the profession will be greatly terrorized by punishment of some of its members after such extended and detached consideration. Moreover, if power of contempt excites fear and terror in the bar, it would hardly be relieved by upholding petitioners’ contention that the judge may proceed against a lawyer at the precise moment of maximum heat but may not do so if he awaits a cooler second thought.

We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt.

But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly-trial, which is the supreme object of the lawyer’s calling.

Affirmed.

Mr. Justice Clark took no part in the consideration or decision of this case.

1 Dennis v. United States, 341 U. S. 494.

2 United States v. Sacher, 182 F. 2d 416.

3 Id., at 423.

4 Id., at 454.

5 Id., at 463.

6 United States v. Dennis, 183 F. 2d 201, 225.

7 Id., at 226.

8 341 U. S. 952.

9 342 U. S. 858.

10 182 F. 2d at 430-453.

11 18 U. S. C. § 401, "Power of court,” provides:

“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

“(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

“(2) Misbehavior of any of its officers in their official transactions;

“(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”

18 U. S. C. § 402, “Contempts constituting crimes,” provides for criminal contempt prosecutions of acts which are in themselves criminal as well as contemptuous, but adds:

“This section shall not be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other eases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.”

12 Rule 42, Fed. Rules Crim. Proc., “Criminal Contempt,” reads:

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

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

13 In Hallinan v. United States, 182 F. 2d 880, cert. denied, 341 U. S. 952, defense counsel was summarily adjudged in contempt under Rule 42 (a) and sentenced to six months’ imprisonment while the trial was still in progress. The trial judge's power to do so was sustained over the objection that he had delayed overnight and that part of the conduct specified was that of four and five days earlier. In MacInnis v. United States, 191 F. 2d 157, cert. denied this date, 342 U. S. 953, defense counsel was adjudged in contempt for conduct the day before. Filing of the certificate of contempt was delayed more than three weeks, and it was announced that the fixing of the punishment would be deferred until the end of the trial. When the trial was concluded two months after the contempt, counsel was immediately sentenced to three months’ imprisonment. The trial judge’s power to do so was upheld.

14 Among them: Ex parte Terry, 128 U. S. 289; Cooke v. United States, 267 U. S. 517; Nye v. United States, 313 U. S. 33; Pendergast v. United States, 317 U. S. 412; In re Michael, 326 U. S. 224.

15 In re Oliver, 333 U. S. 257.