CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1951.

SACHER ET AL. v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

No. 201, Oct. Term, 1950. Argued January 9, 1952. Decided March 10, 1952.

1. Rule 42 (a) of the Federal Rules of Criminal Procedure allows a 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. If he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power. P. 11.

2. During a turbulent nine-months' trial of eleven Communist Party leaders on charges of violating the Smith Act, defense counsel, in the presence of the trial judge and in the face of repeated warnings from him that their conduct was regarded as contemptuous, persisted in a course of conduct that was highly contemptuous and that tended to disrupt and delay the trial and possibly to cause a mistrial. Upon receiving the verdict of the jury at the conclusion of the trial, the trial judge, without further notice or hearing, immediately filed a certificate under Rule 42 (a) of the Federal Rules of Criminal Procedure summarily finding such counsel guilty of criminal contempt and sentencing them to imprisonment. Held: This action was within the power of the trial judge under Rule 42 (a). Pp. 3–11.

(a) The word "summary" as used in Rule 42 (a) 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 com

1

plaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. P. 9.

(b) Neither the language of the Rule nor the reasons for permitting straightway exercise of summary power requires immediate action. Pp. 9-10.

(c) 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. P. 10.

3. It is not necessary for this Court to consider the trial judge's charge
that petitioners deliberately entered into an agreement to impair
his health, since the Court of Appeals found the judgment amply
sustained without this count, the sentences ran concurrently, and
reversal on one count does not require reversal on the others.
P. 11.

4. Rule 42 (a) does not deny a trial judge power summarily to
punish a contempt that is personal to himself, even when it is
not necessary to forestall abortion of the trial. Pp. 11-12.
5. The sentences imposed in this case need not intimidate lawyers
in the proper performance of their professional duties as trial
counsel, for they know that from any summary conviction under
Rule 42 (a) they have an appeal on law and fact to the Court
of Appeals. Pp. 12-13.

6. If its aid be needed, this Court will unhesitatingly protect counsel
in fearless, vigorous and effective performance of every duty per-
taining to the office of the advocate on behalf of any person what-
soever. Pp. 13-14.

182 F. 2d 416, affirmed.

At the conclusion of the trial in Dennis v. United States, 341 U. S. 494, the trial court, under Rule 42 (a) of the Federal Rules of Criminal Procedure, summarily adjudged petitioners guilty of contempt while acting as counsel for the defendants during the trial and sentenced them to imprisonment. The Court of Appeals reversed some specifications of contempt but affirmed the conviction and sentences. 182 F. 2d 416. This Court denied certiorari, 341 U. S. 952, but later granted certiorari limited to one question. 342 U. S. 858. Affirmed, p. 14.

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1

Opinion of the Court.

Paul L. Ross argued the cause for petitioners. With him on the brief were Martin Popper, Earl B. Dickerson and Robert W. Kenny.

Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General McInerney, Robert L. Stern and Robert W. Ginnane.

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. 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 em

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

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

Opinion of the Court.

343 U.S.

4

ployed 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 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." "

We denied petition for further review of the contempt issue. On reconsideration, however, the importance of

4 Id., at 454.

5 Id., at 463.

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

7 Id., at 226.

8341 U. S. 952.