360 U.S. 622 (1959), 326, In re Sawyer

Docket Nº:No. 326
Citation:360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473
Party Name:In re Sawyer
Case Date:June 29, 1959
Court:United States Supreme Court

Page 622

360 U.S. 622 (1959)

79 S.Ct. 1376, 3 L.Ed.2d 1473

In re Sawyer

No. 326

United States Supreme Court

June 29, 1959

Argued May 19-20, 1959

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

While actively participating as one of the defense counsel in a protracted and highly publicized trial in a Federal District Court in Hawaii of several defendants for conspiracy under the Smith Act, petitioner appeared with one of the defendants at a public meeting and made a speech which led to charges that she had impugned the impartiality and fairness of the presiding judge in conducting the trial and had thus reflected upon his integrity in dispensing justice in the case. These charges were preferred by the Bar Association of Hawaii before the Territorial Supreme Court; that Court referred the charges to the Ethics Committee of the Bar Association, which held a hearing, and found the charges sustained. The Territorial Supreme Court, upon review of the record, also sustained the charges, and ordered that petitioner be suspended from the practice of law for one year. The Court of Appeals for the Ninth Circuit affirmed.

Held: the record does not support the charge and the findings growing out of petitioner's speech, and the judgment is reversed. Pp. 623-640, 646-647.

260 F.2d 189 reversed.

For judgment of the Court and opinion of MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS, see pp. 623-640.

For appendix to the opinion of MR. JUSTICE BRENNAN, see p. 640.

For concurring opinion of MR. JUSTICE BLACK, see p. 646.

For opinion of MR. JUSTICE STEWART, concurring in the result, see p. 646.

For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE WHITTAKER, see p. 647.

For dissenting opinion of MR. JUSTICE CLARK, see p. 669.

Page 623

BRENNAN, J., lead opinion

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, 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 [79 S.Ct. 1377] against a number of defendants for conspiracy under the Smith Act, 18 U.S.C. § 2385. The trial was before Federal District Judge Jon Wiig and a jury. United States v. Fujimoto, 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 charges,2 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 pp. 637-638, 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

Page 625

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 Association,3 and

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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 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 discipline imposed 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

Page 627

to consider the applicability of Bridges v. California, 314 U.S. 252; Pennekamp v. Florida, 328 U.S. 331; or Craig v. Harney, 331 U.S. 367, 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 [79 S.Ct. 1379] 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

Page 628

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 factfinding 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. 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

Page 629

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 [79 S.Ct. 1380] testify what Government tells them to." The Government, she claimed, read in evidence for...

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