Harvey v. Commonwealth Brief and Appendix of Plaintiff-in-Error

    IN T H E

Supreme Court of Appeals 
of Virginia

AT RICHMOND

R ecord N o. 6782

RUTH L. HARVEY,
Plaintiff-in-Err or. 

v.

COMMONWEALTH OF VIRGINIA,
Defendant-in-Err or.

BRIEF AND APPENDIX OF PLAINTIFF-IN-ERROR

S. W . T u ck er  
H il l , T u c k e r  & M arsh  

214 East Clay Street 
Richmond, Virginia 23219

J. L. W il l ia m s
216 North Ridge Street 
Danville, Virginia 24541

J ack  Greenberg  
J a m es  M. N a b r it t , III

10 Columbus Circle, Suite 2030 
New York, New York 10019
Counsel for Plaintiff-in-Err or



TABLE OF CONTENTS
Page

S ta tem en t  Of T h e  M ateria l  P roceedings I n  T h e  L ower 
Court ............. -................- ............................... -........................ -............. 1

S t a t e m e n t  O f  T h e  F a c t s ...................................................................  2

T h e  A s sig n m en ts  O f  E rror ............................................................... 5

T h e  Q u estio n s  P r e s e n t e d ...................................................................  6

A r g u m en t  ........................    6

I. Petitioner Was Denied Due Process Of Law In Viola­
tion Of The Fourteenth Amendment.......... .... ...............  6

II. There Was No Willful Purpose Of Deceiving The Court 
Or Any Other Misconduct Constituting Contempt-----  12

Co n c lu sio n  ...............................................................................       13

A ppe n d ix

I. Letter from Commonwealth’s Attorney.......................App. 1

II. Excerpts from Transcript, pp. 1, 2, 7 and 8 ...............App. 2

III. Excerpts from Transcript, pp. 10, 212 & 213...........App. 6

TABLE OF CITATIONS

Cases

Baines, et al. v. City of Danville (Section II) , 337 F. 2d 579 
(4th Cir. 1964, remand affirmed 384 U.S. 890, 16 L. ed 2d 
996, 86 S.Ct. 1915 (1966) ......................................................  2

Brown, R. Jess, In the Matter of, 346 F. 2d 903 (5th Cir. 1965) 12

Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 67 L. ed 
767 (1925) ................................................................................  7



Gault, In re, 387 U.S. 1, 18 L. ed 2d 527 87 S. Ct.

Page

. . .  11

Higgenbotham v. Commonwealth, 206 Va. 291, 142 S.E. 2d 
746 (1965) ................................................................................ 10

Holt, L. W., et al. v. Commonwealth of Virginia, 381 U.S. 131,
14 L. ed 2d 290, 85 S.Ct. 1375 (1965) ................................. 6

Oliver, In re, 333 U.S. 257, 68 S.Ct. 499, 92 L. ed. 682 (1948) 7

Ruffalo, John, Jr., Petitioner, In the Matter o f,.....U.S........., 36
U.S. Law Week 4284 (No. 73 October Term 1967) .........  10

Sacher v. United States, 343 U.S. 1, 96 L. ed 1341, 72 S.Ct.
451 (1952) ............................................................ ................ . 11

Thomas, et al. v. City of Danville, 207 Va. 656, 152 S.E. 2d 265 3

Wise v. Commonwealth, 97 Va. 779, 34 S.E. 453 (1899) .........  10

Other Authorities

Code of Virginia, 1950, as amended, Section 18.1-292 ............... 10

17 C.J.S. 66, Section 25(b) Contempt, By Attorney................... 13



IN T H E

Supreme Court of Appeals of Virginia
AT RICHMOND

R ecord N o. 6782

RUTH L. HARVEY,

v.
Plaintiff -in-Err or,

COMMONWEALTH OF VIRGINIA,
Defendant-in-Error.

BRIEF OF PLAINTIFF-IN-ERROR

STATEMENT OF THE MATERIAL PROCEEDINGS 
IN THE LOWER COURT

Insofar as the petitioner knew, or had reason to know, 
that any charge or accusation against her was pending, 
the proceedings in the lower court consisted only of a 
colloquy in open court on December 20, 1966 (R. 17, 
18) which began with this remark by the Court:

“Miss Harvey, the Court is of the belief that you’ve 
deceived the court here about Leonard Holt” ;

included these further remarks by the court:



2

“You misled the court about representing him. * * * 
And after hearing the witness, Mr. Womack, testify 
about it, I ’m satisfied you were not frank with the 
court about it” ;

and, but for the petitioner’s subsequent notation of an 
appeal, concluded with this remark by the court:

“I don’t think you were frank with the court. The 
court feels you are in contempt of court and fines 
you $25.00.”

Exceptions to the action of the court were filed with 
the clerk on January 9, 1967 and noted by the court in 
its order entered February 20,1967.

STATEMENT OF FACTS 

I
Leonard Winston Holt, Esquire, was one of the per­

sons who had been the subjects of more than 371 arrests 
made in June, July, August and September of 1963 for 
alleged violations of the temporary injunction and re­
straining order of the Corporation Court of the City of 
Danville entered in the case of City of Danville v. Law­
rence George Campbell, et al. Prosecution of these cases 
was delayed by reason of their removal to the United 
States District Court for the Western District of Vir­
ginia (see Baines, et al. v. City of Danville (Section II), 
337 F. 2d 579 (4th Cir. 1964), remand affirmed 384 U.S. 
890,16Led. 2d996, 86S.Ct. 1915 (1966)).

Meanwhile these cases were dropped from, the Corpora­
tion Court’s active docket and were in such inactive 
status on November 21, 1966 when this Court heard



3

arguments on an appeal from said injunction as made 
perpetual ( Thomas, et al. v. City of Danville, 207 Va. 
656, 152 S.E. 2d 265).

These prosecutions for violations of the temporary in­
junction and restraining order were not mentioned when 
the docket was called and criminal cases were regularly 
set for trial or continued at the first day of the November 
1966 Term of the Corporation Court, i.e. on November 
6, 1966. It then was, and had been, the practice of said 
Corporation Court that pending criminal cases not set 
for trial at the November Term stood continued to the 
January Term next following, the December Terms be­
ing reserved for civil cases. However, on or subsequent 
to November 11, 1966, the Honorable A. M. Aiken noti­
fied counsel that these cases would be tried in December 
1966; and by letter of December 7, copy of which is 
herewith exhibited as Appendix No. 1, the Attorney for 
the Commonwealth notified the petitioner and her as­
sociate of the date (December 13, 14, 15, 16 or 19) on 
which each of the 371 cases would be tried.

Of all of the lawyers who in 1963 were engaged in the 
defense of persons arrested for participating in the racial 
protest demonstrations, only two were practicing in Dan­
ville in 1966; namely, Ruth L. Harvey (petitioner herein) 
and J. L. Williams, Esquire. Unaided, except by her secre­
tary, the petitioner undertook the task of locating and giv­
ing appropriate notice to the several defendants, a great 
number of whom for varying reasons were then far re­
moved from. Danville. The court’s recognition of the diffi­
culties involved in this undertaking was expressed during 
a conference in chambers on December 13, 1966 which is 
recorded in a duly certified transcript of the testimony 
and incidents of the trial of Irwin Christopher Bethel



4

and others,1 a copy of pages 1, 2, 7 and 8 of which is 
herewith exhibited as Appendix No. 2.

The court and all concerned counsel had initially as­
sumed that all of the persons charged with violations of 
the injunction were and would be represented by Mr. 
Williams and Miss Harvey.

II

Upon departing from Danville in 1963, Mr. Holt in­
dicated to the petitioner that she was to handle his case 
(R. 18). On December 7, 1966 when the cases were set 
for trial, the petitioner’s information was that Mr. Holt 
was in Washington, D. C. Thereafter, some person at 
his house in Washington, D. C. had told the petitioner (R. 
10) and/or the petitioner’s secretary (R. 17, 18) that 
Mr. Holt would be in court on December 20. Accordingly, 
on December 15, when the clerk called “Leonard Winston 
Holt,” the petitioner indicated to the court that Mr. 
Holt would be there on December 20 and was understood 
by the court as representing that she was “expecting him 
here the 20th” (R. 6). It was then agreed that evidence 
against him. would be heard at the same time as the 
evidence against the others with whom he had allegedly 
participated in a demonstration, in order to serve the 
“possibility that later on . . . they may stipulate that the 
evidence that had been heard on this occasion can be used 
with reference to his matter” (R. 7).

On the following day (December 16) and when both 
Mr. Williams and the petitioner were in court, one Walter

1 Petitions for writs of error in these cases have been pending 
since June 20, 1967.



5

Link was permitted to enter a plea of guilty to a charge of 
violating the injunction on June IS, 1963 and to do so 
without advice or assistance of counsel, although he quite 
clearly seemed to have expected that the advice and serv­
ices of a lawyer would have been available to him. Upon 
his disavowal of any sense of contrition,2 Walter Link 
was sentenced identically as other participants who were 
not leaders had been sentenced ; i.e., ten days on the City 
Farm, eight days suspended, and a fine of twenty dollars 
(R. 7,8).

Having had no contact with L. W. Holt, Esquire, for 
three years, except through members of his family (R. 
17, 18) and, hence, being unsure of their authority to 
“stipulate anything as far as Mr. Holt is concerned” 
(R. 10), the petitioner and Mr. Williams, on December 
20, simply declined to represent L. W. Holt at his trial 
then scheduled. However, when the court ruled that the 
petitioner would not be released from her earlier entry 
of appearance for L. W. Holt (R. 16) she and Mr. 
Williams, as counsel for the defendant Holt, then stipu­
lated that the testimony previously heard would be con­
sidered as evidence against Holt; and thereupon he was 
convicted of violating the injunction (R. 16, 17).

THE ASSIGNMENTS OF ERROR

1. The court erred and violated the Fourteenth 
Amendment requirements of due process by not giving

2 The expectation of the Court that some show of penitence might 
be made by some of the defendants had been demonstrated at the 
above-mentioned December 13-14 trial of Irving Christopher Bethel 
and others, a copy of pages 10, 212 and 213 of the transcript of 
which is herewith exhibited as Appendix No. 3.



6

the respondent notice of a charge or citation against her 
and a fair opportunity, with such charge or citation in 
mind, to cross-examine the witness on whose testimony 
the court relied and to present evidence in her own de­
fense.

2. The court erred in finding that the respondent had 
a willful purpose of deceiving the court.

3. The court erred in finding that there was mis­
conduct reflecting improperly on the dignity of the court 
or misconduct embarrassing the court or otherwise tend­
ing to obstruct, prevent or embarrass the due administra­
tion of justice.

THE QUESTIONS PRESENTED

I
Whether Appellant Could Be Punished Summarily?

II
Whether Appellant Could Be Punished At All ?

ARGUMENT

I
Petitioner Was Denied Due Process Of Law In Violation Of 

The Fourteenth Amendment

The first assignment of error is to the denial of notice 
of a charge or citation and a fair opportunity to be heard. 
In this regard the petitioner’s case is singularly similar 
to L. W. Holt, et al. v. Commonwealth of Virginia, 381 
U.S. 131, 14 L. Ed. 2d 290, 85 S. Ct. 1375 (1965) where, 
as here, “it [was] not charged that petitioners . . . dis­



7

obeyed any valid court order, talked loudly, acted boister­
ously, or attempted to prevent the judge or any other of­
ficer of the court from carrying on his court duties” (381 
U.S.at 136).

The case of In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 
92 L. Ed. 682 (1948), clearly articulates the Fourteenth 
Amendment due process right asserted in the first ex­
ception (R. 3). In reversing the Michigan court’s denial 
of habeas corpus sought on behalf of a witness who was 
summarily charged with, convicted of, and jailed for, an 
alleged contempt of court, the Supreme Court held—

. , that failure to afford the petitioner a reasonable 
opportunity to defend himself against the charge of 
false and evasive swearing was a denial of due 
process of law. A person’s right to reasonable notice 
of a charge against him., and an opportunity to be 
heard in his defense—a right to his day in court— 
are basic in our system of jurisprudence ; and these 
rights include, as a minimum, a right to examine the 
witnesses against him, to offer testimony, and to be 
represented by counsel.” (333 U.S., at 273)

Refering to its earlier decision in Cooke v. United States, 
267 U.S. 517, 45 S. Ct. 390, 67 L. ed 767 (1925), the 
Court said

“. . . that knowledge acquired from the testimony of 
others, or even from the confession of the accused, 
would not justify conviction without a trial in which 
there was an opportunity or defense.” (333 U.S., at 
275)

“Except for a narrowly limited category of contempts, 
due process of law as explained in the Cooke case



8

requires that one charged with contempt of court be 
advised of the charges against him, have a reason­
able opportunity to meet them by way of defense or 
explanation, have the right to be represented by 
counsel, and have a chance to testify and call other 
witnesses in his behalf, either by way of defense or 
explanation. The narrow exception to these due 
process requirements includes only charges of mis­
conduct, in open court, in the presence of the judge, 
which disturbs the court’s business, where all of the 
essential elements of the misconduct are under the 
eye of the court, are actually observed by the court, 
and where immediate punishment is essential to pre­
vent ‘demoralization of the court’s authority * * * 
before the public.’ If some essential elements of 
the offense are not personally observed by the judge, 
so that he must depend upon statements made by 
others for his knowledge about these essential ele­
ments, due process requires, according to the Cooke 
case, that the accused be accorded notice and a fair 
hearing as above set out.” (333 U.S. at 275-6)

For the particulars of the supposed deception in the 
instant case, we have this statement by the Court:

“You misled the Court about representing him.”

The occasion of the supposed deception is not as im­
mediately apparent. However, the court did indicate that 
the testimony of Mr. Womack supported its conclusion 
that the petitioner had misled the court about representing 
L. W. Holt. That testimony indicated that, prior to De­
cember 20, the petitioner had acknowledged to Womack 
that she represented Holt (R. 12) ; therefore it corrobo­
rated her earlier statements to the court to that effect.



9

After hearing Mr. Womack’s testimony, the court ruled 
that it could not release the petitioner from the repre­
sentation of Mr. Leonard Holt. The court did not appoint 
petitioner as counsel to defend Holt; it considered that 
the petitioner had in fact accepted that responsibility and 
had not thereafter been relieved. The conclusion of the 
court on which the contempt conviction is based was that 
the petitioner did mislead the court on December 20 when 
she disavowed her authority and duty to represent Leon­
ard Winston Holt.

It seems that such disavowal was made during the con­
ference in chambers referred to on page 9 of the printed 
record and was first stated in open court by the City 
Attorney. In any event, nothing on the subject was stated 
in open court by the respondent or her associate before 
the court’s question which appears at the top of page 10 
of the printed record, viz:

“* * * Now, Miss Harvey and Mr. Williams, you 
told me several days ago here in Court that you 
did represent Leonard Holt. Why is it now you say 
you do not?”

The conclusion that the December 20 disavowal con­
stituted the alleged contempt may be debatable. But the 
reliance of the trial judge upon statements made by some 
other person for some essential element of the alleged of­
fense is beyond dispute.

“The Court: Miss Harvey, the Court is of the belief 
that you’ve deceived the Court here about Leonard 
Holt.

*  *  *



10

“And after hearing the witness, Mr. Womack, tes­
tify about it, I’m satisfied you were not frank with 
the Court about it.” (R. 17, 18)

Here the judge became “satisfied” after hearing a wit­
ness testify in another proceeding. In Higgenbothlam v. 
Commonwealth, 206 Va. 291, 142 S.E. 2d 746 (1965), 
the judge “upon reflection” concluded that an attorney’s 
conduct had been contumacious. In neither case was there 
an open threat to the orderly procedure of the court or 
flagrant defiance of the person and presence of the judge 
before the public, threatening demoralization of the 
court’s authority. As in the cited case, so here, “the judge 
should have had a rule specifying the alleged contempt­
uous acts served on the defendant, to be followed by a 
full hearing in the matter, instead of exercising his dis­
cretionary summary power under Code § 18.1-292.” At 
the very least the plaintiff-in-error was entitled to an op­
portunity to make an explanation as was done (and, on 
appeal held satisfactory) in Wise v. Commonwealth, 97 
Va. 779, 34SE453 (1899).

The April 8, 1968 opinion of the Supreme Court In the
Matter of John Ruffalo, Jr., Petitioner, .....  U.S.........
36 U.S. Law Week 4284 (No. 73 October Term, 1967) 
accents these arguments. Reviewing a disbarment order 
of the United States Court of Appeals for the Sixth Cir­
cuit, the Court, speaking through Mr. Justice Douglas, 
noted:

“ [T]he charge (No. 13) for which petitioner stands 
disbarred was not in the original charges made 
against him. It was only after both he and Orlando 
had testified that this additional charge was added.



11

Thereafter, no additional evidence against petitioner 
relating to charge No. 13 was taken. Rather, counsel 
for the county bar association said:

‘We will stipulate that as far as we are con­
cerned, the only facts that we will introduce in 
support of Specification No. 13 are the state­
ments that Mr. Ruffalo has made here in open 
court and the testimony of Mike Orlando from 
the witness stand. Those are the only facts we 
have to support this Specification No. 13.'

*  *  *

“ [Petitioner had no notice that his employment of 
Orlando would be considered a disbarment offense 
until after both he and Orlando had testified at length 
on all the material facts pertaining to this phase of 
the case. As Judge Edwards, dissenting below, said, 
‘Such procedural violation of due process would 
never pass muster in any normal civil or criminal 
litigation.’ 370 F. 2d, at 462.
“These are adversary proceedings of a quasi-criminal 
nature. Cf. In re Gault, 387 U.S. 1, 33. The charge 
must be known before the proceedings commence. 
They become a trap when, after they are underway, 
the charges are amended on the basis of testimony of 
the accused. He can then be given no opportunity to 
expunge the earlier statements and start afresh.

As in the cited case, so here: “The absence of fair notice 
as to the reach of the . . . procedure and the precise na­
ture of the charges deprived petitioner of procedural due 
process.” As was well said by Mr. Justice Frankfurter, 
dissenting in Sachet v. United States, 343 U.S. 1, 23, 36, 
96 L. Ed 1341, 72 S.Ct. 451 (1952),



12

“Summary punishment of contempt is concededly an 
exception to the requirements of Due Process. Ne­
cessity dictates the departure. Necessity must bound 
its limits.”

II

There Was No Willful Purpose Of Deceiving The Court Or 
Any Other Misconduct Constituting Contempt

We assume no one would contend that the plaintiff-in­
error’s earlier entry of appearance for Leonard W. Holt 
was not made in good faith. The record indicates that 
she was and had been relying on representations made 
by persons at his Washington, D. C. address to her and/ 
or to her secretary that he would appear for trial. At some 
subsequent time she learned that her messages had not 
in fact been received by Holt and that the promise that 
he would appear did not emanate from. him. Unpleasant 
experiences of other civil rights lawyers suggested that 
hers was an awkward situation. See, e.g., In the Matter 
of R. Jess Brown, 346 F. 2d 903 (5th Cir. 1965).

On the other hand, however, the December 16 pro­
ceedings in the case of Walter Link had served to demon­
strate that the court did not indulge and take at face 
value the assumption that the petitioner and Mr. Williams 
represented all of the people who had been charged with 
violating the injunction. In his explanation for not repre­
senting L. W. Holt, Mr. Williams said that Mr. Holt 
did not tell them “very definitely” to represent him, that 
they were representing all of the people who had been 
in touch, but that Mr. Holt did not so qualify (R. 10). 
Later the petitioner said: “At the time Mr. Holt left



13

here . . . that was three years ago, he indicated that I 
was to handle the case” (R. 18). Understandably the two 
lawyers had different impressions as to what authority 
in 1963 Holt gave to one in the absence of the other. 
However, neither of them, showed an unwillingness to 
defend Holt; they merely supposed that they were then 
without authority (as in the case of Walter Link they 
had felt themselves to be without authority) and, hence, 
that they “could not stipulate anything as far as Mr, Holt 
was concerned” (R. 10). Once the court had resolved 
the question of authority, they defended him as they had 
defended the others.

The general rule, as stated in 17 C.J.S. 66, Contempt 
§ 25 (b) By Attorney, is :

“Misconduct by an attorney which reflects improper­
ly on the dignity or authority of the court, or which 
obstructs or tends to obstruct, prevent, or embarrass 
the due administration of justice, constitutes con­
tempt.”

Nothing in the conduct of the petitioner merits condemna­
tion under this test. The trial of Leonard Winston Holt 
was in no way obstructed. There was no interference 
with any of the proceedings of the court.

CONCLUSION

There clearly was no necessity for summary punish­
ment. Regard for procedural process would have afforded 
opportunity for inquiry, explanation and understanding. 
The petitioner’s doubt of her authority to represent Holt 
required resolution but, under the circumstances, did not



14

merit censure. The judgment of conviction should be 
reversed and the prosecution dismissed.

Respectfully submitted,

S. W. T u ck er  
Of Counsel

S. W. T ucker  
H il l , T u ck er  & M arsh  

214 East Clay Street 
Richmond, Virginia 23219

J. L. W il l ia m s

216 North Ridge Street 
Danville, Virginia 24541

J ack  Greenberg  
J a m es  M. N a b r it , I I I

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Plaintiff-in-Error



A P P E N D I X



App. 1

Appendix No. 1

EUGENE A. LINK
ATTORNEY & COUNSELLOR AT LAW 

D A N V ILLE, V IR G IN IA

M A SO N IC  B U IL D IN G
December 7,1966

Miss Ruth Harvey, Attorney 
453 South Main Street 
Danville, Virginia
Dear Miss Harvey:

Re: Cases involving violation of
restraining order and temporary 
injunction.

We have set down for trial all cases listed on Mr. 
Tucker’s docket involving the following violations:

Cases 1 through 57 set for December 13, 1966.
Cases 58 through 134 set for December 14,1966. 
Cases 135 through 231 set for December 15, 1966. 
Cases 232 through 333 set for December 16, 1966. 
Cases 334 through 371 set for December 19, 1966.

The Honorable A. M. Aiken, Judge, has notified me 
that only the cases involving the temporary injunction 
will be tried in December. I have therefore set out above, 
the cases according to the docket, to be tried according to 
the above dates.

I am giving you this information so that you will be in 
position to notify your clients and have them in Court on 
the dates scheduled.



App. 2

Yours very truly,
/ s /  E u g e n e  A. L in k  
Eugene A. Link, Attorney for the 
Commonwealth, for the City of 
Danville, Virginia.

EAL :dml
cc: Mr. Jerry L. Williams, Attorney 

216 North Ridge Street 
Danville, Virginia

EXCERPTS FROM TRANSCRIPT 
Appendix No. 2

[t r . P. 1]

VIRGINIA:
IN THE CORPORATION COURT OF DANVILLE,
COMMONWEALTH OF VIRGINIA )

)
V. )

)
IRVIN CHRISTOPHER BETHEL, )
LENDBURY BRADSHAW, )
HARRISON BROWN, JR., )
JAMES COBB, JR., )
JOHN ROLAND COLEMAN, )
LAWRENCE COLEMAN, )
ELLIS NEWTON DODSON, )
WILLIAM HAYWOOD INGRAM )
ROBERT JAMES LEWIS, )
MARGIE MABIN, )
HILDRETH GLENNELL McGHEE, )
ARCHIE LEE PETTY, )
HARVEY LEWIS POTEAT, )
LUVINIA PRITCHETT, )



App. 3

JIMMY RAY HAIRSTON.

WILLIAM HOWARD SCOTT, 
PERCY WALTERS,

GEORGE ALBERT WATKINS 
JAMES EDWARD W HIPPLE 
VERNICE SMITH, and

RALPH FRANK WALTERS, 
MELVIN WARNER,

)
)
)
)
)
)
)
)

The following constitutes a transcript of all of the oral 
testimony and other incidents of trial in the above-styled 
cause, before the Honorable A. M. Aiken, Judge of the 
Corporation Court of the City of Danville, on December 
13th and 14th 1966, wherein each of the above-named 
defendants was tried on a charge of Violation of Tempo­
rary Injunction and Restraining Order, and which was 
electronically recorded.
[tr . p . 2]

PRESEN T:
Eugene A. Link, Esq.,
Danville, Virginia,
James A. H. Ferguson, Esq.,
Danville, Virginia,
For the Commonwealth
Ruth L. Harvey, Esq.,
Danville, Virginia,
J. L. Williams, Esq.,
Danville, Virginia,
S. W. Tucker, Esq.,
Emporia, Virginia,
For the Defendants.



App. 4

Each of the Defendants in person, with the exception of 
Jimmy Ray Hairston.

* * *
[t r . p p . 7-8]

C h a m bers

* * * that a little. We have these cases set the 13th, that’s 
today, the 14th, 15th, 16th and the 19th. We have them 
set for those days.

Mr. Lin k : I think we ought to go on through the 
rest of them, and, of course, see if they get here. Some 
of them are on here two or three times. There are other 
people who are not on here. I notice too, Judge, these 
cases are not set on the docket according- to . . . ap­
parently the arrest date and not according to the offense 
date. So most of the relative dates we were going to try 
these cases, I believe was 1 through 57 on the 13th.

J udge A ik e n  : They are the ones set for today.
M r . L i n k : Then I found out now, I’ve got twelve 

cases that were in this other group from 69 through 134 
that should have been on the 13th because that was the 
offense date rather than the arrest date. And Mr. Tucker 
has them listed on his docket. He’s got them listed on 
the arrest date.

M r . T. F. T u c k e r : Well, that’s the only date we had. 
That’s the only way we could do it because at the time 
we issued . . .  if you’ll look at the papers, there was 
nothing on there that we could tell or foresee that the 
offense date would play such an important part in sched­
uling these cases.



App. 5

Miss H arvey : And I might say, of course, Mr. Link 
had a rather difficult time getting these cases together 
and so that as soon as we could get his list for the sched­
uling of the dates it was very difficult for us to notify 
all of these people.

J udge A i k e n : I can see tha t. I th ink there  are  some 
difficulties on both sides.

M iss H arvey: He had difficulties and through him 
getting the dates late to us, then it threw us late trying to 
get word to the people.

Mr. L in k  : Yes, I had a whole lot of trouble.

J udge A i k e n : I realize that there are difficulties on 
both sides and I want to be as fair as I can with both 
sides. I want to be as lenient as we can, reasonably, with 
these people that are on the bonds, Mrs. Hughes and 
some of the others here. I want to give them every rea­
sonable opportunity to get the defendants here that they 
are tied up on.

J udge A i k e n : Jerry, have you any idea how long it 
would take you to get the out-of-town clients here, like 
those who live in Washington and New York, and one 
of them in Iowa?

Mr. W il l ia m s : Yes, sir. Well, we could see how the 
court is going to run say after the 28th, the 29th or some­
where. I think that would give us plenty of time to get 
them all here.

J udge A i k e n : It ought not to take that long to
H* H1

* * *



App. 6

Appendix No. 3

[tr . p . 10]
C ham bers

* * * would be a duplication of evidence if we don’t try 
them on the 10th and the 13th and the 15 th. We’ll be try­
ing them in groups.

J udge A ik e n  : Well, I think we can try some of them 
out there today and get rid of them.

M r . L in k  : But you’ve got to go back and summons 
everybody that you summoned this morning, or practically 
everybody, in order to come back with the 10th again. 
And the same would happen with the 13th too. And I 
don’t know about these other cases, how many that are 
missing on the 14th.

J udge A ik e n  : How much time are we going to need 
to try these out-of-town people ? Are they going to plead 
guilty? They are not going to plead guilty? Well, then 
it might take some time. What are these out here today 
going to do? Are they going to plead guilty? They’re not 
going to express any penitence or any regrets for violating 
the Court’s orders ?

Miss H arvey : Well, the way you put it, Judge.
M r . W il l ia m s : They’re going to do all that. They’re 

going to express all of that. But I mean we have to go 
through with the . . .  Of course, it’s a point that we . . .

M r . S. W . T u c k e r : W e w ant to  try  one case.

M r . W il l ia m s : . . . will make it the trial, won’t we?
J udge A ik e n  : You want to try one case ?



App.7

* * *
[ t k . pp . 212-213]

F ERGUSO N---ARGU M E N T

* * * in any manner or apologized to this Court. And I’ll 
say one further thing and I ’ll sit down. Courts since 
there have been courts in this world prior to the birth of 
Christ have always had powers to summarily punish for 
the disobedience of his orders. As long as there has been 
a history of law and order in this world, Courts have had 
that power. It’s historic, and without it a Court could not 
enforce its decrees. If people could with impunity . . . for 
example, if you ordered me to do a certain thing and I 
could flaunt that completely without any of your powers 
to punish me for the wilful disobedience of some order, 
you might as well not be sitting on the bench. And by 
“you” I mean in the person of you any Judge in this land. 
We must live under rules and regulations and without 
them we live in a law of the jungle. And I see no apolo­
getic countenance on any of these individuals or any 
comment from anybody that “We’re sorry for what we 
did,” or “we apologize if we made a mistake.” And for 
that reason I certainly have no recommendations of len­
iency involved in these individuals who caused open riots 
in our community in 1963.

J udge A ik e n  : All right. We’ve got to wind this matter 
up. The Court is considerably disappointed about these 
defendants. As Mr. Ferguson pointed out, not a single 
defendant has expressed any regret for disobeying the 
Court’s orders. Not a single lawyer representing these 
defendants has expressed any regret about it that I re­
call. They are not willing to say that they were mistaken



App. 8

and misguided in doing what they did, and maybe they 
don’t think so. I don’t know. I am disappointed too in 
the attitude of some of the leaders of this movement, 
especially the ministers. Now I don’t think it ought to 
be held against Reverend McGhee that he started to pray 
out there. That’s all right. What I am disappointed in 
about Reverend McGhee is that I know that he is an in­
telligent man and he is a minister; and the Court thinks 
that he ought to have been advising the people that he 
was leading there that night to obey the Court’s order 
rather than leading them in demonstrations But this 
Court is not going to be very hard on Reverend McGhee. 
The Court feels that it is its duty to uphold the dignity and 
self-respect of this Court. And when this Court makes 
an order, it’s got to be obeyed and anybody who violates 
it has got to pay some penalty for it even though it may 
be small.

Whereupon the Court found each of the following de­
fendants guilty of violating the Court’s injunction as of 
June the 10th, 1963 and fines and sentences to confine­
ment were imposed as * * *

* * *