Sacher v. United States, No. 201

CourtUnited States Supreme Court
Writing for the CourtJACKSON
Citation343 U.S. 1,96 L.Ed. 717,72 S.Ct. 451
PartiesSACHER et al. v. UNITED STATES
Docket NumberNo. 201
Decision Date10 March 1952

343 U.S. 1
72 S.Ct. 451
96 L.Ed. 717
SACHER et al.

v.

UNITED STATES.

No. 201.
Argued Jan. 9, 1952.
Decided March 10, 1952.
Rehearing Denied April 21, 1952.
See 343 U.S. 931, 72 S.Ct. 756.

[Syllabus from pages 1-2 intentionally omitted]

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Mr. Paul L. Ross, New York City, for petitioners.

Mr. Philip B. Perlman, Sol. Gen., Washington, D.C., for respondent.

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, 18 U.S.C.A. § 2385.1 On receiving the verdict, the trial judge at once filed a certificate under Rule 42(a), Fed.Rules Crim.Proc., 18 U.S.C.A., 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-

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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 petitioner's 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 * * *.'6 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 impeturbability of a Rhadamanthus, showed considerably greater self-control and forbearance than it is given to most judges to possess.'7

We denied petition for further review of the contempt issue.8 On reconsideration, however, the importance of

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clarifying the permissible practice in such cases persuaded us to grant certiorari, limited to one question of procedure on which there was disagreement in the court below. Our order stated the issue for consideration: '* * * The sole question for review is: Was the charge of contempt, as and when certified, one which the accusing judge was authorized under Rule 42(a) * * * to determine and punish himself; or was it one to be adjudged and punished under Rule 42(b) only by a judge other than the accusing one and after notice, hearing, and opportunity to defend?'9

The certificate of contempt fills sixty pages of our record and incorporates, by reference, the 13,000 pages of trial record. The certificate in full10 and summary of relevant evidence have been reported below. Because our limited review does not require or permit reexamination of the facts, no purpose would be served by detailed recitals. It is relevant to the questions of law to observe that the behavior punished as a result of the Court of Appeals' judgment has these characteristics: It took place in the immediate presence of the trial judge; it consisted of breaches of decorum and disobedience in the presence of the jury of his orders and rulings upon the trial; the misconduct was professional in that it was that of lawyers, or of a layman acting as his own lawyer. In addition, conviction is not based on an isolated instance of hasty contumacious speech or behavior, but upon a course of conduct long-continued in the face of warnings that it was regarded by the court as contemptuous. The nature of the deportment was not such as merely to offend personal sensitivities of the judge, but it prejudiced the expeditious, orderly and dispassionate conduct of the trial.

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We have taken no issue as to the statute which confers power on a federal court to punish for contempt,11 but only as to the regularity of the procedure under Rule 42,12 designed to provide for the manner of exercising

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that power. The issue we accepted for review is a narrow one. Petitioners do not deny that they might have been summarily punished for their conduct without hearing under Rule 42(a) if the trial judge had acted at once upon occurrence of each incident. But it is contended that this power of summary punishment expired by reason of two circumstances: (1) that the trial judge awaited completion of the trial, at which time its progress could no longer be obstructed, and hence, it is said, summary action had become unnecessary; and (2) that he included in the certificate a charge that the contemptuous instances were the result of agreement between counsel which, if it existed, was not made in his presence. Therefore, it is argued that petitioners could not be convicted or sentenced except after notice, time for preparation of a defense, and hearing, probably before another judge, as provided in Rule 42(b).

Rule 42 obviously was intended to make more explicit 'the prevailing usages at law' by which the statute has authorized punishment of contempts. 18 U.S.C. §§ 401, 402, 18 U.S.C.A. §§ 401, 402. No legislative history sheds light on this issue. Practice of District Judges has not been uniform when they have deemed resort to the power necessary.13 A variety of questions concerning contempt powers, limitations

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and procedures have been considered by this Court,14 but none construed this Rule, which was promulgated by this Court in 1944 and became effective March 26, 1946. Cases prior to it grew out of facts so distinguishing that their decisions are of little value as precedents.

Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. Our criminal processes are adversary in nature and rely upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.

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Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge—his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.

The Rule in question contemplates that occasions may arise when the trial judge must immediately arrest any conduct of such nature that its continuance would break up a trial, so it gives him power to do so summarily. But the petitioners here contend that the Rule not only permits but requires its instant exercise, so that once the emergency has been survived punishment may no longer be summary but can only be administered by the alternative method allowed by Rule 42(b). We think 'summary' as used in this Rule 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 complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure is to inform the court of events not within its own knowledge. The Rule allows summary procedure only as to offenses within the knowledge of the judge because they occurred in his presence.

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322 practice notes
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...district court to prepare a contempt order reciting the facts of a summary contempt for purposes of appeal. See Sacher v. United States, 343 U.S. 1, 11-13, 72 S.Ct. 451, 456-57, 96 L.Ed. 717 (1952) (affirming trial judge's summary adjudication of direct criminal contempt pursuant to Fed. R.......
  • Hawk v. Superior Court, Cr. 11545
    • United States
    • California Court of Appeals
    • September 27, 1974
    ...to resist it or to insult the judge--his right is only respectfully to preserve his point for appeal.' (Sacher v. United States (1952) 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717; In re Buckley, supra, 10 Cal.3d pp. 253, fn. 21, 255, 110 Cal.Rptr. 121, 514 P.2d 1201; Standard 7.1(d) ABA ......
  • Hendershot v. Hendershot, No. 14457
    • United States
    • Supreme Court of West Virginia
    • January 22, 1980
    ...entitled to trial by jury have recognized the necessity for an exception for contempts in Facie curiae. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952), (Black, J., dissenting), Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), (Black, J., diss......
  • Buckley, In re, Cr. 16621
    • United States
    • United States State Supreme Court (California)
    • October 19, 1973
    ...contempt for aggressive but respectful advocacy. This rule and its limitations are eloquently set forth in Sacher v. United States (1952) 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, in upholding the summary conviction of an attorney for direct contempt committed while representing the defendant......
  • Request a trial to view additional results
322 cases
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...district court to prepare a contempt order reciting the facts of a summary contempt for purposes of appeal. See Sacher v. United States, 343 U.S. 1, 11-13, 72 S.Ct. 451, 456-57, 96 L.Ed. 717 (1952) (affirming trial judge's summary adjudication of direct criminal contempt pursuant to Fed. R.......
  • Hawk v. Superior Court, Cr. 11545
    • United States
    • California Court of Appeals
    • September 27, 1974
    ...to resist it or to insult the judge--his right is only respectfully to preserve his point for appeal.' (Sacher v. United States (1952) 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717; In re Buckley, supra, 10 Cal.3d pp. 253, fn. 21, 255, 110 Cal.Rptr. 121, 514 P.2d 1201; Standard 7.1(d) ABA ......
  • Hendershot v. Hendershot, No. 14457
    • United States
    • Supreme Court of West Virginia
    • January 22, 1980
    ...entitled to trial by jury have recognized the necessity for an exception for contempts in Facie curiae. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952), (Black, J., dissenting), Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), (Black, J., diss......
  • Buckley, In re, Cr. 16621
    • United States
    • United States State Supreme Court (California)
    • October 19, 1973
    ...contempt for aggressive but respectful advocacy. This rule and its limitations are eloquently set forth in Sacher v. United States (1952) 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, in upholding the summary conviction of an attorney for direct contempt committed while representing the defendant......
  • Request a trial to view additional results

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