Sawyer 19, 20 1959

Decision Date29 June 1959
Docket NumberNo. 326,326
PartiesMatter of Disciplinary Proceedings against Harriet Bouslog SAWYER, Petitioner. Arued May 19, 20, 1959
CourtU.S. Supreme Court

Mr. John T. McTernan, Los Angeles, Cal., for petitioner.

Mr. A. William Barlow, Honolulu, Hawaii, for respondent.

Mr. Justice BRENNAN announced the judgment of the Court, and delivered an opinion, in which The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join.

This case is here on writ of certiorari, 358 U.S. 892, 79 S.Ct. 153, 3 L.Ed.2d 119, to review petitioner's suspension from the practice of law for one year, ordered by the Supreme Court of the Territory of Hawaii, 41 Haw. 403, and affirmed on appeal by the Court of Appeals for the Ninth Circuit, 260 F.2d 189. 1

Petitioner has been a member of the Territorial Bar in Hawaii since 1941. For many months beginning in late 1952 she participated, in the United States District Court at Honolulu, as one of the defense counsel in the trial of an indictment against a number of defendants for conspiracy under the Smith Act, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. The trial was before Federal District Judge Jon Wiig and a jury. United States v. Fujimoto, D.C., 107 F.Supp. 865. Both disciplinary charges against petitioner had to do with the Smith Act trial. One charge related to a speech she made about six weeks after the trial began. The speech was made on the Island of Hawaii, at Honokaa, a village some 182 miles from Honolulu, Oahu, on a Sunday morning. The other charge related to interviews she had with one of the jurors after the trial concluded.

The Bar Association of Hawaii preferred the charges2 which were referred by the Territorial Supreme Court to the Association's Legal Ethics Committee for investigation. The prosecutor who represented the Government at the Smith Act trial conducted the investigation and presented the evidence before the Committee. The Committee submitted the record and is findings to the Territorial Supreme Court. Because the suspension seems to us to depend on it, see 79 S.Ct. 1384, infra, we deal first with the charge relating to the speech. The gist of the Committee's findings was that the petitioner's speech reflected adversely upon Judge Wiig's impartiality and fairness in the conduct of the Smith Act trial and impugned his judicial integrity. The Committee concluded that petitioner 'in imputing to the Judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts and in other comments made at Honokaa, was guilty of violation of Canons 1 and 22 of the Canons of Professional Ethics of the American Bar Association3 and should be disciplined for the same.' The Territorial Supreme Court held that '* * * she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein * * * and thus tended to also create disrespect for the courts of justice and judicial officers generally * * *. She has thus committed what this court considers gross misconduct.' 41 Haw. at pages 422—423.

We think that our review may be limited to the narrow question whether the facts adduced are capable of supporting the findings that the petitioner's speech impugned Judge Wiig's impartiality and fairness in conducting the Smith Act trial and thus reflected upon his integrity in the dispensation of justice in that case. We deal with the Court's findings, not with 'misconduct' in the abstract. Although the opinions in the Court of Appeals and the argument before us have tended in varying degrees to treat the petitioner's suspension as disciplie i mposed for obstructing or attempting to obstruct the administration of justice, in a way to embarrass or influence the tribunal trying the case, such was neither the charge nor the finding or professional misconduct upon which the suspension was based. Since no obstruction or attempt at obstruction of the trial was charged, and since it is clear to us that the finding upon which the suspension rests is not supportable by the evidence adduced, we have no occasion to consider the applicability of Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; or Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546, which have been extensively discussed in the briefs. We do not reach or intimate any conclusion on the constitutional issues presented.

Petitioner's clients included labor unions, among them the International Longshoremen's and Warehousemen's Union. Some of the defendants in the Smith Act trial were officers and members of that union and their defense was being supported by the union. The meeting at Honokaa was sponsored by the ILWU and was attended in large part by its members. The petitioner spoke extemporaneously and no transcript or recording was made of her speech. Precisely what she did say is a matter of dispute. Neither the Territorial Supreme Court nor the Court of Appeals saw the witness, but both courts, on reading the record, resolved matters of evidentiary conflict in the fashion least favorable to the petitioner. For the purposes of our review here, we may do the same. The version of the petitioner's speech principally relied upon by the Court of Appeals, 260 F.2d at 197—198, is derived from notes made by a newspaper reporter, Matsuoka, who attended the meeting and heard what the petitioner said. These were not Matsuoka's original notes the originals were lost—but an expanded version prepared by him at the direction of his newspaper superiors after interest in the speech was aroused by Matsuoka's account of it in the newspaper.4 We set forth the notes in full as an Appendix to this opinion, and summarize them here, as an account of what petitioner said. The summary will illumine the basis of our conclusion that the finding that the petitioner's speech impugned the integrity of Judge Wiig or reflected upon his impartiality and fairness in presiding at the Smith Act trial is without support. The fact finding below does not remove this Court's duty of examining the evidence to see whether it furnishes a rational basis for the characterization put on it by the lower courts. See Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108. Speculation cannot take over where the proofs fail. We conclude that there is no support for any further factual inference than that petitioner was voicing strong criticism of Smith Act cases and the Government's manner of proving them, and that her references to the happenings at the Honolulu trial were illustrative of this, and not a reflection in any wise upon Judge Wiig personally or his conduct of the trial.

Petitioner said that the Honolulu trial was really an effort to get at the ILWU. She wanted to tell about some 'rather shocking and horrible things that go on at the trial.' The defendants, she said, were being tried for reading books written before they were born. Jack Hall, one of the defendants, she said, was on trial because he had read the Communist Manifesto. She spoke of the nature of criminal conspiracy prosecutions, as she saw them, and charged that when the Government did not have enough evidence 'it lumps a number together and says they agreed to do something.' 'Conspiracy means to charge a lot of people for agreeing to do something you have never done.' She generally attacked the FBI, saying they spent too much time investigating people's minds, and next dwelt further on the remoteness of the evidence in the case and the extreme youth of some of the defendants at the time to which the evidence directly related. She said 'no one has a memory that good, yet they use this kind of testimony. Why? Because they will do anything and everything necessary to convict.' Government propaganda carried on for 10 years before the jurors entered the box, she charged, made it 'enough to say a person is a communist to cook his goose.' She charged that some of the witnesses had given prior inconsistent testimony but that the Government went ahead and had them 'say things in order to convict.' 'Witnesses testify what Government tells them to.' The Government, she claimed, read in evidence for two days Communist books because one of the defendants had once seen them in a duffel bag. Unless people informed on such defendants, the FBI would try to make them lose their jobs. 'There's no such thing as a fair trial in a Smith Act case. All rules of evidence have to be scrapped or the Government can't make a case.' She related how in another case (in the territorial courts) she was not allowed to put in evidence of a hearsay nature to exonerate a criminal defendant she was representing,5 but in the present case 'a federal judge sitting on a federal bench permits Crouch (a witness) to testify about 27 years ago, what was said then * * * here they permit a witness to tell what was said when a defendant was five years old.' She then declared, 'There's no fair trial in the case. They just make up the rules as they go along.' She gave the example of the New York Smith Act trial before Judge Medina, see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, where she claimed 'The Government can't make a case if it tells just what they did so they widened the rules and tell what other people did years ago, including everything including the kitchen sink.' She declared, 'Unless we stop the Smith trial in its tracks here there will be a new crime. People will be charged with knowing what is included in books ideas.' Petitioner said in conclusion that if things went on the freedom to read and freedom of thought and action would be subverted. She urged her auditors to go out and explain what a vicious thing the Smith Act was.

The specific utterances in the speech that the Legal...

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