In re Dellinger

• Decision Date: 06 December 1973
• Docket Number: No. 72 CR 925.,72 CR 925.
• Citation: 370 F. Supp. 1304
• Parties: In the Matter of David T. DELLINGER et al.
• Court: U.S. District Court — Northern District of Illinois

370 F. Supp. 1304

In the Matter of David T. DELLINGER et al.

No. 72 CR 925.

United States District Court, N. D. Illinois, E. D.

December 6, 1973.

COPYRIGHT MATERIAL OMITTED

James R. Thompson, U. S. Atty., Gary Starkman, Royal B. Martin, Asst. U. S. Attys., Chicago, Ill., for the United States.

Morton Stavis, and Doris Peterson, Center for Constitutional Rights, New York City, for all defendants.

William M. Kunstler, Center for Constitutional Rights, New York City, and Leonard I. Weinglass, Los Angeles, Cal., for all nonlawyer defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This case arose from the 1969 trial of the so-called "Chicago 7," five of whom were found guilty of violations of the 1968 Federal Anti-Riot Act (18 U.S.C. § 2101) after a four and a half month jury trial.¹ At the conclusion of the trial, the trial judge, acting under Fed. R.Crim.P. 42(a), summarily convicted the defendants and their two trial attorneys (the nine original defendants herein) on 159 specifications of contempt of court, in violation of 18 U.S.C. § 401(1).² The contempt sentences ranged from two months and 18 days for defendant Weiner to four years and 13 days for attorney Kunstler. On May 11, 1972, the Court of Appeals reversed all the contempt convictions and remanded 141 of the specifications for trial before another judge. In re Dellinger, 461 F.2d 389 (7th Cir. 1972).³

Fifty-two of the remanded contempt charges against the present defendants came on for trial before the undersigned,⁴ sitting without a jury,⁵ on October 29, 1973. At the conclusion of the government's case, which consisted solely of the official transcript of the Anti-Riot Act trial, the Court dismissed two of the specifications and acquitted the defendants of 24 others. This removed from the trial defendants Lee T. Weiner and John R. Froines.

After a four and one-half week trial, the Court has now received the evidence and heard argument on the issues of culpability, extenuation and mitigation (see Seale, 461 F.2d at 372; Dellinger, 461 F.2d at 397) with respect to the 26 remaining specifications against defendants David T. Dellinger, Rennard C. Davis, Thomas E. Hayden, Abbott H. Hoffman, Jerry C. Rubin, and their two trial counsel, defendants William M. Kunstler and Leonard I. Weinglass.⁶ The presently relevant evidence consists in main part of the official transcript of the Anti-Riot Act trial (some 23,000 pages), supplemented by selected portions of the court reporter's tape recordings of the trial and the testimony of the defendants, lawyers, witnesses, deputy marshals, members of the press and other spectators who were present at various times during the trial.

The Court's findings of fact and conclusions of law are included in the following opinion. Fed.R.Crim.P. 23(c).

I CULPABILITY

With respect to each of the 26 contempt specifications presently before the Court, the Court is called upon to determine whether the evidence establishes beyond a reasonable doubt all elements of the crime of contempt charged to the defendant in that specification. Seale, 461 F.2d at 372. In making that determination, the Court is governed by the legal standards set forth in the two opinions of the Court of Appeals for the Seventh Circuit remanding the contempt proceedings against the present defendants and those against their former co-defendant Seale, In re Dellinger, supra (hereinafter Dellinger); United States v. Seale, supra (hereinafter Seale), as those standards have been further developed in two subsequent opinions in which that court has tested the sufficiency of criminal contempt convictions. In re Chase, 468 F.2d 128 (7th Cir. 1972) (hereinafter Chase); Robson v. Oliver, 470 F.2d 10 (7th Cir. 1972) (hereinafter Oliver). See also Robson v. Malone, 412 F.2d 848 (7th Cir. 1969).

A. Non-Lawyer Defendants. With respect to the non-lawyer defendants, the Court of Appeals has made clear in Seale that four elements are required to support a criminal contempt conviction under 18 U.S.C. § 401(1).⁷ See generally Seale, 461 F.2d at 366-371.

(1) First, the conduct in question must be "in the court's presence or so proximate that it obstructs the administration of justice." Id. at 367.

Here, it is undisputed that the conduct charged took place in the court's presence.

(2) Second, the conduct at issue must constitute "misbehavior."

The Court of Appeals has defined "misbehavior" as "conduct inappropriate to the particular role of the actor, be he judge, juror, party, witness, counsel or spectator," the role of each having been "molded to insure that a judicial proceeding is orderly, dignified, and confined to a rational search for truth in the context of defined legal issues." Id. at 366-367. The fundamental principle is that "there must be silence except as the orderly conduct of business calls for speech." Id. at 367 (quoting from Robson v. Malone, supra, 412 F.2d at 850).

(3) Third, the alleged contemnor must have acted with the requisite intent.

The Court of Appeals has defined the minimum required intent as "a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful." Seale, 461 F.2d at 368. Thus, proof of a specific intent to obstruct justice is unnecessary to establish the requisite intent. Id. at 368-369. A defendant cannot be cited for contempt for borderline conduct, unless he has been first warned that such conduct will be regarded as contumacious. Id. at 366.⁸ Conduct depicted in the trial transcript, without more, may itself sufficiently indicate intent to satisfy the government's burden of proof on this issue. Id. at 369. And finally, the defendant's motivation will not justify his misbehavior; "if his misbehavior was contemptuous within the meaning of the statute, I agree that it could not be excused by a religious or other conscientious motivation." Chase, 468 F.2d at 140 (Stevens, J., dissenting).

(4) Fourth, the conduct in question must amount to an "actual and material" obstruction of the administration of justice. Seale, 461 F.2d at 369.

The Court of Appeals has rejected a standard which would make punishable "any interruption" which "diverts the judge's attention from the orderly dispatch of the trial." Idem. It has stated, however, that "the seriousness of the misbehavior bears on what conduct may be found materially obstructive." Idem. Recognizing that "obstruction is an elusive concept which-does not lend itself to general statements," Idem., the Court of Appeals has nevertheless delineated certain types of conduct which do and do not rise to the level of obstruction:

(i) "Mere disrespect or affront to the judge's sense of dignity" is not alone sufficient; however, "at some point disrespect and insult become actual and material obstruction." Id. at 369-370. "A showing of imminent prejudice to a fair and dispassionate proceeding is, therefore, necessary to support a contempt based upon mere disrespect or insult." Id. at 370. In determining whether the disrespectful remarks so imperil the proceeding, the reasonably to be expected reactions of those in the courtroom to the words or acts under scrutiny are relevant," and "the test of contumaciousness of words spoken during a court proceeding is their effect as contemporaneously understood by those who heard the words spoken in the courtroom. This includes the judge as well as other persons present." Idem. (quoting from Parmelee Transp. Co. v. Keeshin, 292 F.2d 806, 810 (7th Cir. 1961)).

(ii) The manner in which insulting remarks are spoken may raise otherwise non-obstructive remarks to the level of an obstruction. Seale, 461 F. 2d at 370. Furthermore, the delays caused by such remarks or other misbehavior may be sufficient to constitute a material obstruction, and thus "if a not insubstantial delay is entirely unnecessary and the misconduct serves, for instance, solely to vent the speaker's spleen, the requisite obstruction would be present." Idem. Differences in language patterns between different social, ethnic, political groups are, of course, relevant to the issue of intent. Idem.

(iii) "Failure to heed the directive of the Court to desist from arguing, to sit down, or to remain quiet may indeed constitute an actual material obstruction to the administration of justice." Id., 461 F.2d at 371. "A certain amount of leeway must be allowed. But where the directive is clear, the judge's insistence on obedience is not undercut by his further rejoinder, and the party directed understands what is being asked of him, he must obey." Idem.

(iv) "Where there is legally adequate representation and no pressing need for the litigant to interject himself into the proceedings, this Court is hesitant to find as a matter of law that any such interjection did not rise to the level of an obstruction." Dellinger, 461 F.2d at 401.

Finally, of particular importance to the present case are two points which the Court of Appeals has repeatedly emphasized:

(1) The Court of Appeals has made clear that "impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct"; judicial error, judicial or prosecutorial misconduct, and judicial or prosecutorial provocation are to be considered only as extenuating and mitigating circumstances. Dellinger at 401; Seale, 461 F.2d at 361-363.

(2) The Court of Appeals has further made clear that "the standards of proper courtroom decorum are not altered and should not be applied differently because a trial may be characterized as political or because improprieties may be said to spring forth as if a `natural human response.'" Seale at 367. "The court is not a public hall for the expression of views, nor is it a political arena or a street. It is a place for trial of defined issues in accordance with law and rules of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel." Dellinger at 461 F.2d 401 (quoting from Katz v. Murtagh, 28 N.Y.2d 234, 240, 321 N.

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