United States v. Buck

• Court: U.S. District Court — Western District of Missouri
• Citation: United States v. Buck, 18 F.Supp. 827 (W.D. Mo. 1937)
• Decision Date: 09 March 1937
• Docket Number: 13682,13648,13678,No. 13646,13684.,13676,13646
• Parties: UNITED STATES v. BUCK et al., and five other cases.

18 F. Supp. 827

UNITED STATES v. BUCK et al., and five other cases.

Nos. 13646, 13648, 13676, 13678, 13682, 13684.

District Court, W. D. Missouri, W. D.

March 9, 1937.

Maurice M. Milligan, U. S. Atty., Randall Wilson, Asst. U. S. Atty., and Sam C. Blair, Asst. U. S. Atty., all of Kansas City, Mo.

I. J. Ringolsky, William Boatright, Harry L. Jacobs, Ludwick Graves, and James Daleo, all of Kansas City, Mo., for defendants.

OTIS, District Judge.

If in the mandamus proceedings against me which I assume soon will be instituted (they are the arrows next to be drawn from a quiver apparently as inexhaustible as the widow's barrel), if in those proceedings the learned Circuit Court of Appeals shall say that these affidavits of prejudice are sufficient in law, I shall not only step aside from these cases, but shall do that gladly, most gladly. Experience now has demonstrated that to try one case of this character requires approximately three days and nights of hard labor, not to mention the time lost in reading anonymous letters, listening to anonymous 'phone calls, and giving consideration to every species of dilatory motion to which fertile imaginations can give birth. I shall be grateful indeed to the Court of Appeals if, before the date when the cases are set for trial, it can find merit in these affidavits. The prospect of trying cases like these for the better part of a year has no appeal. If I must try criminal cases, let them be such as occasionally disclose something attractive, like the moon shining down from above the oaks of the Ozarks on a typical scene. I can even say that if any federal judge in the United States would like to try one of these cases and will let me know (if it can be arranged with the Senior Circuit Judge and the Chief Justice and the Proctor of the Supreme Court), I shall endeavor to accommodate him and I shall gladly take three of his cases in exchange.

But there is one thing I will not do. I think there is no merit whatever in these affidavits. Thinking that, I will not voluntarily desert the post at which I have been put. Certainly it will take more to induce me to quit it than affidavits patterned on that well-known modernization of an ancient epigram:

"I do not like thee, Dr. Fell The reason why I cannot tell But this I know, I know full well I do not like thee, Dr. Fell."

I have heard it said that a judge should fade away like a vanishing dream at the moment he discovers some litigant does not like the color of his hair or the pace of his pulse. If, for example, one indicted as a horse thief is about to be tried for practicing his profession without a license and protests that he desires as his judge one who has not been so indiscreet as to suggest he thinks stealing horses of doubtful morality, the judge should say: "Why, of course, my dear sir, I yield to your wishes: You shall be the judge as to who shall be your judge: I realize that one prejudiced against horse stealing must be prejudiced against a man charged with stealing horses."

Such things have been said, but not by those who think. The father of such a conception of the duty of the judge is the fundamental error that the judge is but a referee at a game, chosen by the players, subject to removal at the will of either. He is not a referee at a game. He is not the representative of the parties. He is the representative of the sovereign and he will abandon the trust reposed in him only at the sovereign's command or when he falls at his post.

So far as I am concerned I shall contribute nothing toward making the federal judicial system an inefficient and an incompetent system. As a citizen, I am proud of that system. I shall not, by adopting an "Alphonse-Gaston" attitude in the office to which I have been appointed, help to make it impotent.

If I had the slightest personal prejudice against a single one of the defendants by whom affidavits have been filed, of course I would not stop to consider whether the affidavits are sufficient. I would disqualify myself on my own motion. But I have no such prejudice. I have no personal acquaintance whatever with any one of the defendants. While I suppose that I did see them when they were arraigned, I would not recognize any of them on sight. I have not even read the indictments pending against them (except for the indictment in case No. 13648). I could not possibly any more have a personal prejudice against any of the defendants than I have against those mythical characters, John and Mary Doe.

Whether I have or have not a personal prejudice against any of the defendants, it is my duty to disqualify myself if the affidavits filed are sufficient. I must disqualify myself if they are sufficient. I must refuse to disqualify myself if they are not sufficient. Fortunately all of them can be considered together for,...