In re Sawyer

• Decision Date: 17 November 1958
• Docket Number: No. 15109.,15109.
• Citation: 260 F.2d 189
• Parties: In the Matter of Disciplinary Proceedings against Harriet Bouslog SAWYER, a member of the Territorial Bar of the Territory of Hawaii, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F.2d 189 (1958)

In the Matter of Disciplinary Proceedings against Harriet Bouslog SAWYER, a member of the Territorial Bar of the Territory of Hawaii, Respondent.¹

No. 15109.

United States Court of Appeals Ninth Circuit.

June 9, 1958.

Certiorari Granted November 17, 1958.

COPYRIGHT MATERIAL OMITTED

John T. McTernan, Los Angeles, Cal., Myer C. Symonds, Honolulu, Hawaii, A. L. Wirin, Los Angeles, Cal., for petitioner.

A. William Barlow, U. S. Atty., Honolulu, Hawaii, Edward N. Sylva, Atty. Gen., Territory of Hawaii, Morio Omori, Sp. Deputy Atty. Gen., Honolulu, Hawaii, for respondent.

Before STEPHENS, Chief Judge, and HEALY, POPE, FEE, CHAMBERS, BARNES and HAMLEY, Circuit Judges.

Certiorari Granted November 17, 1958. See 79 S.Ct. 153.

CHAMBERS, Circuit Judge.

Harriet Bouslog Sawyer became a member of the Territorial Bar of Hawaii in 1941. Since then, except for four World War II years when she was in Washington, D. C., she has been engaged in the active practice of law at Honolulu. A large part of her work has been in the courtroom. Prior to 1941 she had been admitted to practice in Indiana and Massachusetts.

On August 29, 1951, a federal indictment was returned in Honolulu against Charles Kazuyuki Fujimoto and Jack Wayne Hall and five other residents of the Hawaiian Islands charging them jointly with violations of the Smith Act, 18 U.S.C.A. § 2385. On Labor Day five days later on the Island of Kauai she was pleading the cause of the defendants before a Labor Day audience, castigating Smith Act cases in general and this case in particular. That speech resulted in no charges against her and the date she commenced representation of defendants in the case is not clear.

The Honolulu Smith Act case went to trial on November 5, 1952. Eventually the trial was concluded and a jury verdict was returned on June 19, 1953, finding the defendants guilty.² It is definite that throughout the extended trial she was representing one or more defendants. Sometimes she missed sessions; if so, she was busy on legal research incident to the case.

On Sunday, December 14, 1952, during the period of the trial, she went to the town of Honokaa on the Island of Hawaii³ and with the defendant Hall addressed a public meeting primarily attended by members of the International Longshoremen's and Warehousemen's Union. Some segment or segments of that union were financing in whole or in part the defense of the seven. The exact purpose of the meeting does not seem to be clear. Hall and Mrs. Sawyer were apparently the main speakers, although there were others. Based on their own subsequent testimony, it would be fair to characterize the gathering as some kind of an old fashioned "indignation meeting." The speeches of the two resulted in publicity throughout the Islands. The newspaper stories caused the trial judge, Honorable Jon Wiig, to suspend temporarily the trial and question Mrs. Sawyer in open court about her speech at Honokaa. When the colloquy was done, Judge Wiig announced he was not satisfied with her explanation and he instructed the U. S. Attorney for the District of Hawaii to make an investigation.⁴ (Mrs. Sawyer's explanation and colloquy with the court is set forth as Appendix C.) No proceedings in the district court were ever brought.

Within a day or so after the verdict, a juror, David P. Fuller, Jr., suffered a nervous breakdown and generally became most incompetent. The case was "on his mind;" how much is disputed as is his rationality at the times of various conversations. Visits from Mrs. Sawyer and from Mrs. Sawyer and Hall to Fuller followed. A sister-in-law, Mrs. Ellen Fuller Cabreros, was present as well as Mrs. Fuller and one or more of the Fuller children. As a consequence of these visits and in support of the motion for a new trial Mrs. Fuller, Mrs. Cabreros and Hall all made affidavits as to statements made to them by Fuller,⁵ the effect of which, if admissible, would be to prove by Fuller's statements to Mrs. Sawyer and Hall what went on in the jury room in the secret deliberations. The purpose was to impeach the verdict. Parenthetically, such affidavits ought to have been stricken from the file of the Smith Act case. (They were merely not considered.) It is hard to believe that counsel did not know of their inadmissibility.

After the close of the trial Judge Wiig orally requested the Hawaii Bar Association, through its president, to look into Mrs. Sawyer's professional conduct during the trial.

This resulted in the association filing on July 8, 1954,⁶ with the Supreme Court of Hawaii one complaint with the two charges of misconduct in it against Mrs. Sawyer. One charge dealt with the Honokaa speech; the other with the manner of presentation and preparation (the surrounding conduct) of the affidavits. The second charge did not assert falsity, per se, of the affidavits.

The text of the complaint was as follows:

"Complaint Under Rule 19

"To the Honorable, the Justices of the Supreme Court of the territory of Hawaii:

"Comes now the Bar Association of Hawaii, an unincorporated association, and on information and belief complains to this Honorable Court under Rule 19 of the Rules hereof as follows:

I.

"That Harriet Bouslog Sawyer, hereinafter referred to as the Licensee, is and at all times hereinafter mentioned continuously has been an attorney-at-law duly licensed and admitted to practice before all of the courts of the Territory of Hawaii and before the United States District Court for the District of Hawaii, and that the said Licensee is now and during all of said times herein mentioned has been a practitioner before said courts.

II.

"That the said Licensee, while appearing as counsel of record for certain defendants in that certain case in the United States District Court for the District of Hawaii entitled `United States of America, Plaintiff, vs. Charles Kazuyuki Fujimoto, et al., Defendants,\' being Criminal Number 10495 in said Court, during the course of the trial of said case, to wit, on or about December 14, 1952, did say during a speech to a public gathering in Honokaa, Hawaii, that horrible and shocking things were going on at said trial; that a fair trial was impossible; that all of the rules of evidence were being scrapped so the government could make its case; that the rules of evidence and procedure were made up as the case proceeded; and that unless the trial was stopped in its tracks certain new crimes would be created.

III.

"That said Licensee did during the course of said trial and shortly after rendition of a verdict therein visit a juror who was known by her to be indisposed, and thereafter submitted her affidavit concerning an interview with said juror to the presiding judge under circumstances indicating a failure to comply with standards of professional conduct required of practitioners of law licensed to practice before this Court.

"Wherefore, the Bar Association of Hawaii prays this Court to refer this complaint to the Committee on Legal Ethics and Unauthorized Practice of this Court for investigation in conformity with Rule 19 of the Rules of this Court.

"Dated: Honolulu, Hawaii, July 8, 1954.

"Respectfully submitted "Bar Association of Hawaii "By /s/ Masaji Marumoto "Its President.

"Endorsed: Filed July 8, 1954.

"Title of Supreme Court and Cause."

The Supreme Court of the Territory of Hawaii referred the complaint to its Legal Ethics Committee for investigation. Before holding a hearing the committee required the Bar Association of Hawaii to furnish a bill of particulars on the second charge. On September 29, 1954, the bill was filed as follows:

"Bill of Particulars

"Pursuant to an Order entered on September 21, 1954, by the Legal Ethics Committee, the following Bill of Particulars is hereby furnished:

"1. Copy of the affidavit of Harriet Bouslog, subscribed and sworn to before a notary public on the first day of July, 1953, signed by the Licensee Harriet Bouslog and filed in the United States District Court for the District of Hawaii on July 1, 1953, in the case of United States of America, Plaintiff, vs. Charles Kazuyuki Fujimoto, et al., Defendants, Criminal No. 10,495.

"`Affidavit of Harriet Bouslog

"`Territory of Hawaii,

"`City and County of Honolulu-ss.

"`I, Harriet Bouslog, being first duly sworn, on oath depose and say:

"`On Friday evening, June 26, 1953, shortly before 6:00 o\'clock I received a telephone call at my home from Ellen Fuller Cabreros, sister of David P. Fuller who sat as a juror in the case of United States v. Fujimoto, et al. Mrs. Cabreros asked me if I could come and see her brother; that he was seriously ill.

"`I went to the Fuller home at 1734 Colburn Street and was taken by Mrs. Cabreros and Mrs. Fuller, into the front bedroom where Mr. Fuller was lying in bed. He appeared to be gravely ill.

"`I talked with his wife, Helen Fuller, in the living room of their home in the presence of Ellen Fuller Cabreros and her friend, Grace Oshiro, and two of the Fuller children. All the members of the family present were upset and in tears at the state of Mr. Fuller. Mrs. Fuller stated that she had called a doctor to examine her husband and informed me that her husband had been ill since the return of the verdict, and particularly since early in the morning of Saturday, June 20, 1953, the morning after the verdict was returned.

"`Mrs. Fuller said that on Saturday morning, the day immediately following the verdict of guilty in the Smith Act case, at about five o\'clock in the morning, she found her husband on his knees praying, begging God for mercy, saying he had sinned, that he had lied in the eyes of God; that Jack Hall was innocent and the case was a frame-up; that Jack Hall is a good man; that those people are doing good for humanity and here someone is trying to block them. She said that in the time since, her husband had told her that the jury only looked at the Government\'s case and scarcely talked at all about the defendant\'s side and their

...